2004:1u

Josefin Almer and Matilda Rotkirch

European Governance– An Overview of the

Commission’s Agenda for Reform

Josefin Almer and Matilda Rotkirch

European Governance– An Overview of theCommission’s Agenda for Reform

Sieps 2004:1uOctober/2004

Publisher: Swedish Institute for European Policy Studies.

The report is available atwww.sieps.se

The report can also be ordered frominfo@sieps.se

The opinions expressed in this report arethose of the authors and are not necessarilyshared by Sieps.

Cover: Svensk Information AB

Print: EO-print AB

Stockholm, October 2004

ISBN 91-85129-61-5ISSN 1651-8071

PREFACESieps, the Swedish Institute for European Policy Studies,conducts and promotes research, evaluations, analyses andstudies of European policy issues, with a focus primarily inthe areas of political science, law and economics.

This report gives an overview of the Commission’s agenda forEuropean governance reform as set out in the White Paper ofGovernance that was adopted by the Commission in 2001,focusing on how the Commission envisages its own role in theEU decision-making process. Furthermore, it describes how anumber of follow-up documents adopted by the Commissionhave essentially given effect to the initial recommendationsand proposals set out in the White Paper. The aim has been toclarify how the governance reform has taken a concrete shapeat the different stages in the decision-making process since thelaunch of the White Paper.

One of the missions of the Institute is to act as a bridge be-tween academics and policy-makers and one of the primaryaims of these reports is to build this bridge. Furthermore, in abroader sense the reports shall contribute to increased interestin current issues in European integration as well as increaseddebate on the future of Europe.

Tomas DahlmanDirectorSieps

ABOUT THE AUTHORSJosefin Almer is assistant researcher at Sieps and doctoralcandidate at the Stockholm University Faculty of Law. She hasa degree in Law from the University of Stockholm.

Matilda Rotkirch is assistant researcher at Sieps and has adegree in Law from the University of Lund. She has previouslyworked in the Commission Legal Service and the EuropeanParliament.

LIST OF CONTENTSABBREVIATIONS ............................................................... 8

1 BACKGROUND.......................................................... 9

2 QUESTION AND OUTLINE...................................13

3 THE WHITE PAPER ON EUROPEANGOVERNANCE

3.1 Introduction ....................................................................163.2 Initiating Phase...............................................................183.3 Implementing Phase .......................................................193.4 Monitoring Phase ...........................................................203.5 Follow-up Documents of the White Paper.....................21

4 PHASE ONE – THE GOVERNANCEREFORM AND SHAPING OF POLICY

4.1 The Commission’s Decision to Initiate Policy-making .244.1.1 The Right of Initiative....................................................244.1.2 Systematising Impact Assessment .................................264.2 A More Proactive Role for the Institutionalised

Advisory Bodies.............................................................284.3 Involvement of the Civil Society at Large

– The Open Consultation Process ..................................304.3.1 Introduction ....................................................................304.3.2 Establishment of Databases............................................334.3.3 Minimum Standards for Consultation............................344.3.4 Consultation of Civil Society in the

Constitutional Treaty ......................................................364.4 Involvement of Target Groups

– The Focused Consultation Process .............................374.5 The Use of Expert Advice .............................................394.6 The Role of Regional and Local Government...............414.7 The Use of Key Networks..............................................444.8 Conclusion......................................................................45

5

6

5 PHASE TWO – THE GOVERNANCEREFORM AND IMPLEMENTATIONOF POLICY

5.1 Introduction ....................................................................485.2 Reforming Comitology ..................................................485.2.1 Introduction ....................................................................485.2.2 Proposal for Amending the

Current Comitology Decision ........................................505.2.3 Amendment of Article 202 of the EC Treaty ................535.3 Involvement of Regional and

Local Government through Tripartite Contracts............545.4 The Use of Regulatory Agencies ...................................565.5 Involvement of the Sectors Concerned ..........................595.6 Conclusion......................................................................61

6 PHASE THREE – THE GOVERNANCEREFORM AND MONITORING OF POLICY

6.1 Introduction ....................................................................666.2 Improvements in the Prevention of Infringements ........676.3 Effective Management of Controls and

Action against Infringements .........................................68

7 GOVERNANCE REFORM IN PRACTICE7.1 Introduction ....................................................................717.2 The Proposal in the Lamfalussy report..........................727.3 The Market Abuse Directive ..........................................767.3.1 Level One – Initiation and Adoption .............................767.3.2 Level Two – Implementation..........................................777.3.3 The Commission Adopts a First Set of

Implementing Measures .................................................797.3.4 Level Three – Transposition...........................................817.3.5 Conclusion......................................................................81

8 REACTIONS TO THE COMMISSION’SAGENDA FOR REFORM OF EUROPEANGOVERNANCE

8.1 Introduction .................................................................. 838.2 Consultation of the Civil Society................................. 848.3 Involvement of Regional and Local Government in

Decision-making........................................................... 888.4 The Commission’s View on Reforming Comitology... 928.5 The Operating Framework for Regulatory Agencies... 97

9 CONCLUSIONS.......................................................101

ANNEX IA CHRONOLOGICAL OVERVIEWOF THE DOCUMENTS RELATEDTO THE WHITE PAPER .......................................106

ANNEX IIA SUBSTANCE-MATTER OVERVIEWOF THE DOCUMENTS RELATEDTO THE WHITE PAPER .......................................109

LIST OF MATERIALS .....................................................112

7

ABBREVIATIONSCBO Community Based Organisation

CESR Committee of European Securities Regulators

CONECCS Consultation of the European Commissionand Civil Society

CoR Committee of the Regions

DG Directorate General

EC European Community

ECOFIN Council for Economic and Financial Affairs

EESC Economic and Social Committee

EMI European Monetary Institute

ESC European Securities Committee

EU European Union

IGC Intergovernmental Conference

IPM Interactive Policy Making

NGO Non Governmental Organisation

OMC Open Method of Co-ordination

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EUROPEAN GOVERNANCE– AN OVERVIEW OF THE COMMISSION’SAGENDA FOR REFORM*“The quality, relevance and effectiveness of EU policiesdepend on ensuring wide participation throughout the policychain – from conception to implementation.”1

1 BACKGROUNDWhen the Commission led by Romano Prodi took office in2000, it set out four strategic objectives for the five yearsahead. One of them was the promotion of new and betterforms of governance in order to achieve a more efficient anddemocratic decision-making process at the European level.2 Asa first step in this process, a White Paper on EuropeanGovernance (hereinafter referred to as the White Paper) wasadopted.3 The White Paper contained a series of recom-mendations and proposals on how to enhance democracy inthe European Union (EU) and increase the legitimacy of theinstitutions. The aim of this study is to give an overview onhow the Commission has realised the agenda presented in theWhite Paper, but before doing that the White Paper should beput in its context.

At the entry of the new millennium, the EU was facingseveral challenges. Ten new Member States were about to jointhe Union; the biggest enlargement in the history of the EU.The enlargement put focus on some of the challenges that theEU has been facing for several years, such as the so called

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* The authors would like to thank Carl Fredrik Bergström and PieterBouwen for helpful comments and suggestions.

1 See COM (2001) 428, infra note 3, p. 10.2 See Commission Communication of 9 February 2000 on Strategic

Objectives 2000–2005 “Shaping the New Europe”, COM (2000) 154.The other three strategic objectives presented were: “Stabilizing theEuropean Continent and Boosting Europe's Voice in the World”, “A NewEconomic and Social Agenda”, and “A Better Quality of Life for All”.

3 See the Commission’s White Paper of 25 July 2001 on EuropeanGovernance, COM (2001) 428.

democratic deficit and the legitimacy of the EU institutions.Moreover, the enlargement made it necessary to amend thedecision-making procedure of the Union itself in order tomake it workable with 25 Member States around the table.

These challenges were addressed by an IntergovernmentalConference (IGC) that was convened on 14 February 2000.4

At the Nice European Council on 9 December 2000 the workof the IGC was concluded, the outcome being the so calledTreaty of Nice.5 In a Declaration attached to the Treaty ofNice the Heads of State and Government stated that the Treatyhad completed the changes necessary for accession of newMember States but it was also recognised that there was still aneed for further amendments of the treaties in order to addressthe issues of “…democratic legitimacy and transparency of theUnion and its institutions in order to bring the Union closer toits citizens…”.6 The Heads of State and Government thereforecalled for “…a wider and deeper debate on the future of theUnion..”.7 One year later, the Laeken European Counciladopted the Declaration on the Future of the EU describingthe EU as “standing at a crossroads, a defining moment in itsexistence” where it “needs to become more democratic, moretransparent and more efficient”.8 It entrusted a Conventionwith the task to prepare proposals for reform. The findings ofthe convention, together with the outcome of national debates,would provide a starting point for the discussions in the nextIGC.9 The work of the European Convention on the Future ofEU resulted in the adoption of a draft Constitutional Treaty on

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4 See, for example, the Nice-IGC website,www.europa.eu.int/comm/archives/-igc2000/geninfo/index_ en.htm.

5 See Treaty of Nice (OJ 2001 C 80/1).6 See Declaration No 23 on the Future of the Union attached to the Treaty

of Nice, paragraph 6. 7 See Declaration on the Future of the Union, supra note 6, paragraph 3.8 See Laeken Declaration on the future of the European Union, annexed to

Presidency Conclusions, European Council meeting in Laeken, 14–15December 2001, pp. 19–24.

9 See Laeken Declaration on the future of the European Union, supra note8, p. 25.

10 July 2003.10 The draft Constitutional Treaty was the basisfor the discussions in the IGC that was convened on 4 October2003.11 On 18 June 2004 the Heads of State and Governmentagreed on a text for a Treaty establishing a Constitution forEurope.12 The Treaty text approved by the IGC is to a largeextent the same as the text adopted by the Convention. Thenew Constitutional Treaty will enter into force after it hasbeen ratified by all Member States in accordance with theirrespective constitutional requirements.13

The debate on a democratic deficit within the EU systemdoes indeed concern all EU institutions. But this issue wasespecially relevant for the Commission in 1999 as JacquesSanter and his fellow commissioners resigned following theaccusations of fraud, nepotism and mismanagement. At thispoint, the public confidence in the Commission reached anall-time low. As the new Prodi Commission took office in2000, the restoration of the Commission’s power and prestigewas therefore a top priority. It felt a pressing need to addressthe immediate implementation of the issues of effective,accountable and legitimate governing arrangements under theexisting treaties, bearing in mind that it will take several yearsbefore a new treaty addressing these issues possibly entersinto force.14 In the view of the Commission much could andshould therefore be done before a new treaty was in place tochange the Union’s working ways. In early 2000, the Com-mission therefore decided to launch the reform of European

11

10 See Draft Treaty establishing a Constitution for Europe(OJ 2003 C 169/1).

11 See, for example, the IGC website,http://ue.eu.int/cms3_fo/showPage.ASP?id=251&lang=en.

12 See 2003/2004 IGC – Provisional consolidated version of the Treatyestablishing a Constitution for Europe, CIG 87/04, Brussels 6 August2004.

13 See Article 48 of the EU Treaty. In several Member States referendumswill be held on the new Treaty. If and when the Constitutional Treaty willenter into force is therefore still uncertain.

14 See Hall, B., European governance and the future of the Commission,Centre for European Reform Working Paper, (2002), pp. 2–3.

governance as one of its strategic objectives in the five yearsto come and this decision resulted in the adoption of theWhite Paper.15 In the years following the adoption of theWhite Paper the Commission has launched several initiativesin order to fulfil the agenda before the approaching end of theterm.16 A new Commission will take office in November 2004.It is therefore interesting at this point to look closer at whatthe previous one set out to do and what it has achieved in thisrespect.

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15 See COM (2000) 154, supra note 2. The Commission also initiated aninternal reform in order to prepare itself for managing a larger and morediverse Union. Commissioner Neil Kinnock was appointed to overseethis modernisation of the Commission’s services.

16 See Annex I for a chronological list and Annex II for a substance matterlist of the Commission’s communications on governance.

Table 1 The Debate on the Future of Europe –Some Important Dates

9 February 2000 The Commission launches the reform on European Governanceas one of its strategic objectives.

14 February 2000 The Intergovernmental Conference (IGC) initiated.

9 December 2000 The IGC concluded at the Nice European Council.

25 July 2001The Commission adopts the White Paper on European Governance.

15 December 2001 The Laeken European Council adopts the Declaration on theFuture of the EU.

28 February 2002 The European Convention on the Future of the EU starts its work.

10 July 2003 The European Convention signs its draft Constitutional Treaty.

4 October 2003The IGC launched.

18 July 2004The IGC is concluded by the agreement on the Treaty establishinga Constitution for Europe.

2 QUESTION AND OUTLINEThe objective of this study is to give an overview of how theCommission has realised the agenda set out in the White Paper.Focus will be set on the recommendations and proposalsdesigned to improve overall transparency and quality of thedecision-making process. Above all, this study will describehow the Commission envisages the involvement of differentactors, such as the involvement of civil society, at the variousstages of the decision-making process. In addition some reac-tions to the Commission agenda will be accounted for.

It should be emphasised that questions of governance werediscussed, rather extensively, within the Convention on theFuture of EU. The way in which the Convention and, moreimportantly, the IGC sought to deal with such questions in thenew Treaty is therefore of the utmost interest.17 The Commis-sion was very active in the debate of the Convention anddelivered several communications to the Convention. Althoughthe proposals made in the White Paper and to the Conventionsometimes overlap, the process of improving governance asaddressed in the White Paper must be distinguished from thegreater task of drafting a new European Constitution. Thisstudy will therefore only shortly account for these possibleforthcoming constitutional changes.

Furthermore, this study is limited to what we call the de-cision-making process and the Commission’s recommenda-tions and proposals regarding the same. The White Paper alsocontains many other proposals, such as proposals on how toimprove international representation of the community, butthese proposals will not be accounted for in this study.

The Commission agenda set out in the White Paper has beenrealised through the adoption of several documents in the yearfollowing the publication of the White Paper. This study triesto look at all these subsequent documents in the context of

13

17 The Commission also drew on the principles made in the White Paper inits contributions to the Convention.

seeing whether and how the Commission has achieved what itset out to do in 2000. The documents this study is based onmake use of a variety of concepts and definitions and thelanguage is not always coherent. There is therefore a need toclarify how we define some of the most frequently usedconcepts in this study.

As mentioned, this study will be limited to what we here callthe decision-making process (policy-making will be used as asynonym).18 By this concept, we mean the process from theinitiation stage to the final adoption of an act and theimplementation and execution of that act. In general, decision-making in areas coming under the EC Treaty follows theCommunity method. It currently applies to issues related tothe ‘first pillar’ that contain largely economic, social andenvironmental matters, including international affairs such astrade.19 There are several variations of this method. But the“pure” Community method envisages a system whereby theCommission alone makes legislative proposals and theCouncil and the European Parliament adopt legislation accord-ing to the so called co-decision procedure.20 When adopting anact the Council votes by qualified majority. Execution oflegislation is entrusted to national authorities and, to someextent, to the Commission. The Commission is responsible forensuring that this is done successfully. The system is re-inforced by the Court of Justice which guarantees uniforminterpretation and, indeed respect for the rule of law.21 Thissystem does not apply to the second and third pillars,Common Foreign and Security Policy and Justice and HomeAffairs, where the right of initiative is mostly shared by allMember States and the Commission, and unanimity mostlyapplies as a decision rule.

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18 Both concepts are here used in a wider sense than law-making since theCommission also adopts measures that are not law-making.

19 See, for example, Contribution from Mr Barnier and Mr Vitorino to theConvention on 3 September 2002 on the Community method, CONV231/02.

20 See Article 251 EC Treaty.21 See Articles 211 and 220 EC Treaty.

In this study the decision-making process is divided into threephases, the initiation phase, the implementing phase and themonitoring phase. Since the focus of the study is on the Com-mission, these three phases follow the Commission’s role inthe decision-making process according to the Communitymethod. By the initiation phase we mean when the Com-mission initiates decision – or law-making. Implementationwill be used in a rather wide sense and also include execution.By the monitoring phase we mean the phase of the decision-making process where the Commission monitors the applica-tion of the legislation in the Member States, i.e. functions aswhat is usually referred to as the guardian of the treaty.

The study begins by a short introduction of the adoption ofthe White Paper and its proposals (Part 3). It will then give anaccount of how the Commission envisages the governancereform at the initiating phase (Part 4), the implementing phase(Part 5), and the monitoring phase (Part 6) of the decision-making process. After that an example will be given of agovernance reform in practice (Part 7). The study will thentake a short look at some reactions to the Commission’s WhitePaper agenda for reform (Part 8). Finally, some conclusionswill be drawn on the possible implications of the realisation ofthe Commission’s agenda for reform in the light of thereactions it has received (Part 9).

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3 THE WHITE PAPER ON EUROPEANGOVERNANCE

3.1 IntroductionAccording to the Commission, ever since the adoption of theTreaty on European Union in 199322 the democratic challengehas “involved a mismatch between a general sympathy ofcitizens towards European ideals and a nagging mistrust of theinstitutions”.23 The Commission therefore wanted to deliver anadequate response to the citizens’ ability to relate to the Unionand have a say in the development of shared rules.24 InFebruary 2000, the President of the Commission, RomanoProdi, announced that the Commission was going to present aWhite Paper on European governance.25 The drafting of thedocument was organised under six work areas and twelveworking groups.26 Each working group conducted externalconsultations and presented a report.27 The findings resulted ina set of recommendations and proposals in the White Paper

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22 See Treaty on European Union (OJ 1992 C 191/1).23 See Commission Working Document of 11 October 2000 on Enhancing

democracy in the European Union 2000, SEC (2000) 1547/7 final, p. 5.24 See SEC (2000) 1547/7, supra note 23, p. 5.25 See Speech by Romano Prodi in the European Parliament on 15

February 2000.26 The six work areas were: I: European public space and European

scientific references; II: Participation of civil society, Evaluation andBetter regulation; III: Decentralisation through agencies and VerticalDecentralisation; IV: Convergence of national policies, Trans-Europeannetworks and Multi-level governance; V: EU and world governance; andVI: Future of EU policies. See the Commission’s website on Governance,www.europa.eu.int/comm/governance/index_en.htm.

27 In addition, two studies on the application of Community law byMember States and on how and what the European citizens perceive andexpect from the EU were also conducted. The result of these twelveworking groups was presented in a document called Preparatory Workfor the White Paper that can be found at the Commission’s website onGovernance, www.europa.eu.int/comm/governance/index_en.htm.However, they do not reflect the official position of the Commission. Seealso Commission Report on the consultations conducted for thepreparation of the White Paper on democratic European governance,SG/8533/01, (June 2001).

that was finally approved by the Commission on 25 July2001.28

The White Paper defines governance as “the rules, processesand practices that affect how powers are exercised at theEuropean level”.29 It forwards a set of recommendations andproposals focusing on the role of the EU institutions, improv-ing the involvement in shaping and implementing EU policyand achieving better regulation. According to the White Paper,the reform is to be implemented immediately within theexisting treaties. As will be explained below (see infra part5.2), it may be questioned if all proposals fall within thatdefinition.30

Five principles underpin the proposals: openness, participa-tion, accountability, effectiveness and coherence. The pro-posals intend to lead in the direction of a reinvigoration of theCommunity method. The Commission describes how it wantsto refocus its role on the Treaty tasks of initiating, implement-ing and monitoring EU-policy.31 Many of the promoted ideasare in no respect new inventions and have been presented bythe Commission at various times before.32 However, the WhitePaper also contains some innovative elements. To give a briefoverview of the content of the White Paper with regard tobetter decision-making, the proposals will be presented hereunder the three tasks that the Commission is focusing on in itsgovernance reform.

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28 See COM (2001) 428, supra note 3. The Commission primarilyaddresses the White Paper to the other European Institutions, present andfuture Member States, regional and local authorities, and civil society.

29 See COM (2001) 428, supra note 3, p. 8.30 Some of the initiatives proposed in the Commission's White Paper have

been taken forward in the preparation of treaty amendments within theConvention on the Future of EU.

31 See COM (2001) 428, supra note 3, pp. 15, 17, 18, 30 and 33–34.32 See, for example, proposals regarding reform of the comitology system,

Bergström, C.F., Comitology – Delegation of Powers in the EuropeanUnion and the Committee System, (Stockholm University 2003).

3.2 Initiating Phase In the White Paper, the Commission explains how it wants touse its right of initiative in a more targeted way and focus onidentifying long-term objectives. In its view, an open andstructured consultation of the civil society and experts willallow it to consider much more critically than before thedemands from the other institutions for new politicalinitiatives. It will also enhance the accountability and publicconfidence in the way expert advice is used in the decision-making process. In this respect the White Paper put forwardseveral proposals, the most important ones being the adoptionof “minimum standards” for consultation and the establish-ment of a database with details of civil society organisationsactive at EU level. The aim is to make the procedure moreeffective and accountable, both for those consulted and thosedoing the consulting. Another important proposal is theinitiative to publish guidelines on collection and use of expertadvice. Furthermore, the Commission states its intention todevelop a more systematic approach to working with so calledkey networks and develop more extensive partnershiparrangements where it is committed to additional consultationsgoing further than the minimum standards. Additionally,the Commission threatens to make use of its formal rightto withdraw proposals where inter-institutional bargainingundermines the Treaty principles of subsidiarity and pro-portionality.33

The White Paper does not focus on a special role for therepresentatives from the regional and local level at the policyinitiation phase as much as it does on a role for civil societyin general. According to the Commission, the principalresponsibility for involving the regions in the Europeandecision-making process remains with national administra-tions. Still, it thinks that a complementary response to thenational responsibility is needed at the EU level whendeveloping policy proposals with a strong territorial impact.

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33 See COM (2001) 428, supra note 3, pp. 15, 17, 19, 22 and 32–34.

The White Paper therefore expresses the will to organise asystematic dialogue with regional and local governments. Italso presents a new idea to involve the regional and local levelthrough testing so called tripartite contracts. These arecontracts between a Member State, its regions and localities,and the Commission. Central government would play a keyrole in setting them up and would remain responsible for theirimplementation. In addition to this, the White Paper wants theCommittee of the Regions to play a more proactive role inexamining policy and organising the exchange of best practiceon how regional and local authorities are involved in thepreparatory phase of European decision-making at nationallevel.34

3.3 Implementing PhaseThe White Paper contains several proposals aimed at improv-ing the quality of policy implementation. They are presentedin a frame within which the Commission makes its intentionsclear throughout the document: it wants the Council and theEuropean Parliament to focus more on political direction,leaving implementation to itself, the executive. According tothe Commission, more use should be made of legislation thatis limited to rules laying down essential elements, leaving theexecutive to fill in all details via implementing rules. TheCommission wants a review of the conditions under which itadopts implementing measures in order to make decision-making simpler, faster, easier to understand and, at the sametime, improve accountability. In short, the Commission wouldlike to get rid of the comitology system (see infra part 5.2)except for the advisory committees when carrying out itsexecutive role. Instead it recommends legislation to define theconditions and limits for the Commission in this respect andhave the Council and the European Parliament monitor andcontrol the actions of the Commission. This is not possible

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34 See COM (2001) 428, supra note 3, pp. 13–14.

within existing treaties.35 The White Paper therefore states thatthe Commission will bring forward the issue at the next IGC.It did so with great success within the work of the Conventionon the future of the EU (see infra part 5.2.3).36

The White Paper also brings up the need to simplify Com-munity legislation. In order to do so, the Commission wants tolaunch a high-profile programme to review and simplifyCommunity legislation adopted before 2000. Furthermore, itpromotes greater use of different policy tools such as regula-tions, framework directives, guidelines, recommendations andco-regulatory mechanisms.37 The Commission also promotesthe idea of creating further autonomous EU regulatoryagencies with the power to take individual decisions in theapplication of regulatory measures. It argues that the use ofsuch agencies would improve the way rules are appliedand enforced across the Union and reinforce the effectivenessand visibility of Community legislation in the eyes of bothbusiness and the public. The White Paper sets out conditionsfor the creation of regulatory agencies. The Commission alsostates its intention to propose clear framework legislationwithin which these agencies should operate.38

3.4 Monitoring Phase One of the Commission’s essential tasks is to monitor closelythe application of Community legislation at the national level.The White Paper puts forward proposals aiming at improvingthe preconditions for infringement actions. One is to codifyand publish the administrative measures in force concerningthe processing of complaints about breaches of Community

20

35 Article 202 EC Treaty only permits the Council alone to impose certainrequirements concerning the way the Commission exercises its executiverole.

36 See COM (2001) 428, supra note 3, pp. 20 and 31-34.37 The conditions under which the Commission will consider the use of co-

regulation are set out at p. 21 of the White Paper. See COM (2001) 428,supra note 3, pp. 21 and 23.

38 See COM (2001) 428, supra note 3, p. 24.

law. Another is to establish the criteria that will be used inprioritising the investigation of possible breaches of Com-munity law. The White Paper describes the priority attached totreatment of possible breaches of Community law. Finally, theCommission wants to continue to pursue an active dialoguewith the Member States on enforcement, infringement action,application, and in this respect proposes twinning arrange-ments between national administrators to share best practicein implementing application measures, and promote theawareness of Community law among national courts andlawyers.39

3.5 Follow-up Documents of the White PaperFollowing the launch of the White Paper, the Commissionorganised a public consultation which was closed on 31 March2002.40 After considering the outcome of the consultation,focus was put on realising the agenda set out in the WhitePaper.

In June 2002, the Commission adopted the first set of com-munications under the headline “a modernisation plan forclearer and better European legislation”. These mainly focusedon better consultation and accountability.41 A second series ofdocuments focusing on improving the decision-making within

21

39 See COM (2001) 428, supra note 3, pp. 25–26.40 Contributions on the public debate can be found on the Commission’s

website on Governance,www.europa.eu.int/comm/governance/index_en.htm. The Commissionalso published a working summary of the public response available atwww.europa.eu.int/comm/governance/docs/comm_results_en.pdf.

41 See Commission Communication of 5 June 2002, “EuropeanGovernance: Better lawmaking”, COM (2002) 275 final; CommissionCommunication of 5 June 2002 on Impact assessment, COM (2002) 276final; Commission Communication of 5 June 2002, Consultationdocument: “Towards a reinforced culture of consultation and dialogue -Proposal for general principles and minimum standards for consultationof interested parties by the Commission”, COM (2002) 277 final; andCommission Communication of 5 June 2002, Action plan: “Simplifyingand improving the regulatory environment”, COM (2002) 278 final.

existing treaties were adopted in December 2002. This set ofdocuments contained a code of conduct for the Commission touse when it consults.42 The other measures concerned tripartitecontracts agreements, the use of experts, regulatory agencies,reform of comitology and better monitoring of the applicationof Community law.43 A Report on European Governance de-scribing the progress achieved that far was also adopted.44

At this time, some of the ideas presented in the White Paperand the following documents were also promoted by the Com-mission within the debates that took place in the Conventionon the future of the EU. In this respect, the Commissionadopted two Communications in 2002: “A project for thefuture of the European Union” in May and “For the EuropeanUnion, Peace, Freedom, Solidarity” in December.45 In addition

22

42 See Commission Communication of 11 December 2002, “Towards areinforced culture of consultation and dialogue – General principles andminimum standards for consultation of interested parties by theCommission”, COM (2002) 704 final.

43 See Commission Communication of 11 December 2002, “A frameworkfor target-based tripartite contracts and agreements between theCommunity, the States and regional and local authorities”, COM (2002)709 final; Commission Communication of 11 December 2002 on thecollection and use of expertise by the Commission: principles andguidelines, “Improving the knowledge base for better policies”, COM(2002) 713 final; Commission Communication of 11 December 2002,“The operating framework for the European Regulatory Agencies”, COM(2002) 718 final; Proposal of 11 December 2002 for a Council Decisionamending Decision 1999/468/EC laying down the procedures for theexercise of implementing powers conferred on the Commission, COM(2002) 719 final; and Commission Communication of 11 December2002, “Better monitoring of the application of Community law”, COM(2002) 725 final.

44 See Commission Report of 11 December 2002 on European Governance,COM (2002) 705 final.

45 See Commission Communication of 22 May 2002 to the EuropeanConvention on the Future of the EU, “A project for the European Union”,COM (2002) 247 final; and the Commission’s second proposal to theConvention on the Future of the EU, Commission Communication of 11December 2002 to the European Convention on the Future of the EU onthe institutional architecture, “For the European Union, Peace, Freedom,Solidarity”, COM (2002) 728 final/2.

to these, Prodi commissioned a draft for a fully-fledgedConstitution (the Penelope project).46 However, it was neveradopted by the College of Commissioners and is therefore notan official Commission document. Instead, it was labelled adiscussion paper.

The Commission continued to pursue its governance reform in2003. To this end, it launched a major initiative to simplifyand streamline EU legislation and adopted a Communicationon how a Dialogue with regional and local associations shouldbe organised.47

Through these numerous documents adopted after the WhitePaper, the Commission is realising its agenda for reform ofEuropean Governance. Many of the documents restate thebasic ideas presented in the White Paper and it may there-fore be difficult to get a comprehensible picture of the roleenvisaged for the Commission and other actors in the de-cision-making process. The following three chapters will tryto clarify what the Commission has done so far with regard tothe initiating phase, the implementing phase and the monitor-ing phase.

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46 See Commission’s Feasibility Study: Contribution to a preliminary draftConstitution of the European Union of 5 December 2002, workingdocument available atwww.europa.eu.int/futurum/documents/offtext/const051202_en.pdf.

47 See Commission Communication of 11 February 2003 to the Council,the European Parliament, the European Economic and Social Committeeand the Committee of the Regions, “Updating and simplifying theCommunity acquis”, COM (2003) 71 final; and CommissionCommunication of 19 December 2003, “Dialogue with associations ofregional and local authorities on the formulation of European Unionpolicy”, COM (2003) 811 final.

4 PHASE ONE: THE GOVERNANCE REFORMAND SHAPING OF POLICY

4.1 The Commission’s Decision to InitiatePolicy-making

4.1.1 The Right of InitiativeThe Commission’s intention set out in the White Paper toinvolve non-institutional players in the decision-making pro-cess has led to the adoption of several subsequent documentsenvisaging bottom-up involvement through a number of pro-cesses and players. But before describing them in more detail,we will look closer at how the Commission envisages its ownrole when initiating policy proposals.

Throughout the White Paper the Commission underlines theimportance of the Community method, the need to reinforceand apply it correctly and to extend it to certain areas where itdoes not yet apply. A key component of this method is theCommission’s exclusive right of initiative.48 Some signs showthat the Commission has felt threatened in this capacity by theEuropean Parliament, the Council of Ministers and theEuropean Council. It has, for example, complained that itsright to propose legislation has been infringed by certaincompromises concluded between the European Parliamentand the Council during the conciliation procedure.49 Another

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48 See CONV 231/02, supra note 19.49 One example of such a statement is found in the so called Compound

feeding stuffs dossier, Directive 2002/2/EC of the European Parliamentand of the Council of 28 January 2002 amending Council Directive79/373/EEC on the circulation of compound feedingstuffs and repealingCommission Directive 91/357/EEC (OJ 2002 L 63/23). Another exampleis found in the Two and three-wheel motor vehicles dossier where theCommission felt that the degree of obligation on the Commission tosubmit proposals set out in the text was too restrictive. It therefore madea statement that – always on the grounds of its right to proposelegislation - it was for the Commission to determine the timetable forsubmission and the substance of the proposals. See European ParliamentActivity Report of 1 August 2001-31 July 2002 of the delegations to theConciliation Committee, PE 287.614, pp. 19–21.

development that may affect the Commission’s right ofinitiative is the more frequent use of the open method ofcoordination (OMC) by the Member States. This method is asoft form of policy co-ordination in order to achieve con-vergence between certain national policies. When used, itlacks formal sanctions for Member States who fail to developplans to implement the EU objectives and guidelines. Thisfeature of the OMC has raised fears that it will have little orno impact and a more frequent use of it could be a potentialthreat to greater use of the Community method.50 According tothe Commission, the OMC should therefore only be used as aflexible measure when legislative action under the Communitymethod is not possible. Furthermore, the Commission stressesthat it should be closely involved in the process and play a co-ordinating role when OMC is used. In its communications tothe Convention on the Future of the EU, the Commissionsuggested that a new treaty should establish its right ofinitiative as the general rule and guarantee that the OMC isapplied in consistency with the Community method.51

In the White Paper, the Commission also expresses its inten-tion to use its right of initiative in a more targeted way andfocus strongly on identifying long-term objectives. Thisapproach is closely connected with its decision to withdraw a

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50 The EC Treaty entails two coordination mechanisms in employment andeconomic policy. In addition, the Lisbon European Council authorisedthe extension of this method to a broad range of other policy domains,such as information society and enterprise policy. This instrument issometimes referred to as a “soft-law” instrument compared to theCommunity method. See e.g. Scott, J. and Trubek, D.M., Mind the Gap:Law and New Approaches to Governance in the European Union (2002),European Law Journal Vol 8, pp. 1–18. The Commission has tabled areport in which it expresses its recommendations on this subject,see COM (2002) 705, supra note 44.

51 See COM (2002) 247, supra note 45; COM (2002) 728 final/2,supra note 45, p. 8; and COM (2001) 428, supra note 3, p. 22.

whole raft of dossiers on which no progress has been made.52

Furthermore, the Commission has taken steps to add, whereappropriate, a review clause, or even a revision clause, to itslegislative proposals so that legislation can be updated andadjusted regularly.53 Finally, the Commission wants to improveits role in taking decisions to initiate policy by assessing theimpact of its initiatives.

4.1.2 Systematising Impact Assessment In June 2002, the Commission adopted a Communication onimpact assessment as part of its so-called Better RegulationPackage. This initiative draws on at least a decade ofexperience of assessment of what impacts a proposal mighthave, for example, on business in a specific sector or onenvironmental and gender effects. By integrating theseelements, the Commission introduces one system, replacingall the existing separate impact assessment mechanisms. Itwill be used for all major legislative and policy initiativesprovided that they have a potential economic, social and/orenvironmental impact and/or require some regulatory measurefor their implementation.54

When comparing the new system with the previous separatemechanisms, several differences can be noted. For example, itrefers to a broad range of stakeholders instead of beingtargeted at one category of them, such as the businesscommunity. The results produced will also be easier totransfer across different Directorate Generals as the newapproach is based on a single template.55 The process is

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52 On the basis of its Communication Withdrawal of Commission proposalswhich are no longer topical the Commission decided to withdraw 108pending legislative and non-legislative proposals, see CommissionCommunication of 21 December 2001, “Withdrawal of Commissionproposals which are no longer topical”, COM (2001) 763 final/2.

53 See COM (2002) 278, supra note 41, p. 8.54 See COM (2002) 276, supra note 41.55 See Radaelli, M. C., Impact Assessment in the European Union:

innovations, Quality and Good regulatory Governance, Conferencebackground Report, European Commission Conference, (Brussels, 3December 2003).

intended to systematically analyse the likely impacts ofintervention by public authorities. It assesses the problem atstake, the objective pursued and identifies the likely positiveand negative impacts of proposed policy action.56

It is the Directorate General in charge of the proposal inquestion that decides whether an impact assessment is neededand how broad and deep this analysis should be. Theassessment procedure is divided into two stages. The first one,a preliminary assessment, gives an overview of the problemidentified, possible options and sectors affected.57 The Com-mission will then decide in its Annual Policy Strategy decisionand/or Work Programme which proposals will require anextended impact assessment. The lead Directorate Generalis responsible for this process and is free to organise theassessment exercise. It must, however, inform, consult andco-ordinate with other interested Directorate Generals.Additionally, it must consult interested parties appropriately inaccordance with the principles set out in the minimumstandards on consultation and collection and use of expertiseaccounted for below (see infra part 4.3.3 and 4.5).58 The mainresults of this consultation should be summarised in theimpact assessment report that will be attached to the proposalin question when it is submitted to the Commission for finaladoption. After adoption by the Commission, the extendedassessment will be sent to the other institutions along with theproposals and also be available on the Internet.

The new impact assessment procedure has been in place sincethe beginning of 2003. All proposals included in the Com-mission’s yearly Work Programme have gone under the pre-

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56 See COM (2002) 276, supra note 41, p. 5.57 The preliminary assessment will result in a short statement focusing on

certain key factors such as identification of the issue and desiredoutcome and identification of the main policy options available toachieve the objective.

58 See Impact Assessment in the Commission: Internal Guidelines on theNew Impact Assessment Procedure Developed for the CommissionServices.

liminary impact assessment. Of these proposals, 43 wereselected for in-depth extended assessment of which half arecompleted. Another 46 proposals are planned to undergo theextended assessment in 2004.59

4.2 A More Proactive Role for theInstitutionalised Advisory Bodies

The obvious actors to be involved in the decision-makingprocess are of course the advisory bodies set out in theEC Treaty, the Economic and Social Committee (EESC) andthe Committee of the Regions (CoR). They have been givenan important role in the decision-making process as inter-mediaries between the EU institutions and civil societyorganisations or regional and local authorities.60

The EESC was founded in 1957 under the Treaty of Rome. Itrepresents employers, trade unions, farmers, consumers andthe other interest groups that collectively make up "organisedcivil society" by presenting their views and defending theirinterests in policy discussions before decisions are taken oneconomic and social policy. The Commission’s dialogue withthe EESC is distinct to its social dialogue with manage-ment and labour. The Commission is required by the Treatyestablishing the European Community (the EC Treaty) toconsult these groups when preparing proposals in the socialpolicy field. Under certain conditions, management, labourand social partners can even reach binding agreements that are

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59 See Speech by Heinz Zourek, Deputy Director General Enterprise DG,Conference on Impact Assessment, Brussels, 3 December 2003. See, forexample, the extended impact assessment done on the new Chemicalspolicy in Commission staff working paper, 29 October 2003, SEC (2003)1171/3. Some have also been completed by the services on a voluntarybasis under a so-called proportionate approach as regards the level ofdetails.

60 Normally, these Committees must be consulted by the Council or by theCommission. The European Parliament may also consult them.In addition, the committees can issue an opinion on their own initiative.See Articles 262 and 265 of the EC Treaty.

subsequently turned into Community law. A Member Statemay also entrust management and labour, at their jointrequest, with the implementation of directives adopted.Trade unions and employers’ organisations therefore have aparticular role in the shaping of social policy.61

The CoR is a more recently established body. It was onlyset up in 1994 under the Treaty on European Union (theEU Treaty). Through its representatives of regional and localauthorities, the Committee intends to give these authorities asay in European Union decision-making process. It has to beconsulted on matters that concern local and regional govern-ment, such as regional policy, the environment, education andtransport.62

In several of the communications that followed the WhitePaper, the Commission makes it clear that it would likeboth the EESC and the CoR to play a more proactive role, forexample by organising consultations on behalf of the Com-mission.63 Additionally, the CoR will have an important rolewhen the Commission organises a more systematic dialoguewith local-governments associations (see infra part 4.6).

Although the EESC and the CoR have a central role in theconsultation process, they are not capable of covering allissues and often deliver their opinions very late in the process.In order to bring the European Union closer to its citizens, adirect contact with civil society is also crucial. The Com-mission has therefore found it essential to improve the directconsultation of civil society and regional and local govern-ment.

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61 See Articles 137-139 EC Treaty.62 See Articles 137-139 EC Treaty. See also COM (2002) 704,

supra note 42, p. 8.63 In 2001 protocols on cooperation between the Commission and the

EESC and the CoR respectively were adopted that provide for theseCommittees to organise consultations on behalf of the Commission.

4.3 Involvement of the Civil Society at Large– The Open Consultation Process

4.3.1 IntroductionThe EC Treaty does not include any general provision thatobliges the EU institutions to consult representatives of thecivil society prior to making decisions. The Protocol on theapplication of the principle of subsidiarity and proportionalitydoes state that the Commission should “consult widely” beforeproposing legislation and, wherever appropriate, publish con-sultation documents, except in cases of particular urgency orconfidentiality. Although there are no other formal treaty ruleson consultation, the EU institutions have a long tradition ofdirect contacts with interested parties. In particular the Com-mission often conducts consultations with interested partiesthrough instruments, such as Green and White Papers, com-munications, advisory committees, business test panels and adhoc consultations.64 But importantly, a general approach onhow to undertake such consultations has not existed. Instead,consultation has been based on a variety of traditions and eachof the Directorate Generals has had its own mechanisms andmethods for consulting its respective sectoral interest groups.

The integration and involvement of civil society was at thecore of the White Paper. But before describing how the Com-mission wants to improve the involvement of civil society inthe decision-making process, it is important to understandwhat this concept stands for. There is no legal or commonlyaccepted definition of what civil society means. According tothe Commission, it can nevertheless be used as shorthand forreferring to a range of organisations which include everythingfrom the labour-market players and organisations represent-ing social and economic players (for instance, consumer or-ganisations) to NGOs (non-governmental organisations whichbring people together in a common cause, such as environ-mental organisations), CBOs (community-based organisations,e.g. youth organisations and family associations) and religious

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64 See COM (2001) 428, supra note 3, pp. 15–16.

communities.65 Individual citizens concerned, academics,technical experts and interested parties in third countries arealso part of civil society.

In order to improve the consultation of civil society actors inthe shaping of policies, the Commission wanted to introducegeneral principles and minimum standards for consultation ofinterested parties by the Commission. But before adoptingsuch a document, it consulted the civil society on a draftversion of it. This draft version made a distinction betweenopen and focused consultation processes. By the term openconsultation procedures the Commission meant the broadpublic consultation processes where all interested parties andindividuals are able to provide the Commission with input.The term focused consultation procedures, on the other hand,was used for situations where the Commission identified themost appropriate consultation channels, for example by clearlydefining the target group(s) of a consultation process.66 TheCommission was criticised for making this distinction. Manyof those who commented on the draft version wonderedwhether access to consultations should be limited and how thequality of submissions by interested parties would be assessed.In its final version, the Commission therefore no longer usedthe terms open and focused consultation procedures althoughit still made that distinction. Still, this study will continue touse the terms open and focused consultation.67

With regard to improving the open consultation procedure, theCommission wanted to broaden the existing consultationprocess. Some ideas expressed in the White Paper to achievethat were to make the system of consultation more effectiveand accountable by establishing a database with details of civilsociety organisations active at European level and create a

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65 See COM (2002) 704, supra note 42, p. 6. The Commission refers to theOpinion of the Economic and Social Committee of 17 November 1999on the role and contribution of civil society organisations in the buildingof Europe (OJ 1999 C 329/30), p. 30.

66 See COM (2002) 277, supra note 41, pp. 7–8.67 See COM (2002) 704, supra note 42, p. 11.

“culture of consultation” through a code of conduct that setsminimum standards indicating whom should be consulted andhow it should be done. According to the Commission, theseboth goals have now been achieved and will be describedbelow (see infra part 4.3.3).68

In order for these processes to function, a more open andtransparent communication between European public-sectors(institutions, Member States, etc.) and Europe’s citizens ingeneral is needed. Some important steps in this respect havealready been taken previous to the launch of the White Paperagenda. One way of making the institutions more open wasthe adoption by the European Parliament and Council Regula-tion regarding public access to documents that came into forcein December 2001.69 Another way through which the Commis-sion has promoted openness is by its information and com-munication strategies70 and by continuing to develop servicessuch as Eur-Lex (a database containing legal and juridicaltexts from all the institutions with the aim to provide thepassage of a text from proposal to adoption), Futurum (aninter-institutional website with information about the debateon the future of the European Union in general and the pro-cess of drafting the European Constitution in particular) andGovernance (a website with information on the governancereform).71 The Commission has also adopted a communication

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68 See COM (2001) 428, supra note 3, pp. 15 and 17.69 See European Parliament and Council Regulation 1049/2001/EC of 30

May 2001 regarding public access to European Parliament, Council andCommission documents (OJ 2001 L 145/43). Since January 2002, theCommission has also made its minutes of meetings available on theInternet.

70 See Commission Communication of 28 June 2001 on a new frameworkfor cooperation on the information and communication policy of theEuropean Union, COM (2001) 354; and Commission Communication of2 July 2002 on an Information and Communication Strategy, COM(2002) 350 final.

71 See Eur-Lex, www.europa.eu.int/eur-lex/en/index.html;Futurum, www.europa.eu.int/futurum; the European Convention,http://european-convention.eu.int; and the Commission’s website onGovernance, www.europa.eu.int/comm/governance/index_en.htm.

on Interactive Policy Making (IPM) which aims to improvegovernance by using the Internet for collecting and analysingreactions in the marketplace for use in the European Union’spolicy-making process.72 This initiative has resulted in the webportal Your-Voice-in-Europe, a single access point used for allconsultations.73

4.3.2 Establishment of DatabasesSince June 2002, the database called Consultation, the Euro-pean Commission and Civil Society (CONECCS) has beenfully operational. The Commission set it up in order for thegeneral public and civil society organisations to see whatorganisations are involved in consultations. The databasealso gives the Commission itself a possibility to identify civilsociety organisations that might be consulted. It is divided intwo sections; one section contains a list of non-profit makingcivil society organisations organised at European level and onesection a list of the Commission's formal and other structuredcivil society consultation bodies (see infra part 4.4).74

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72 See Commission Communication of 3 April 2001 on Interactive PolicyMaking, COM (2001) 1014. IPM forms part of the “e-Commission”initiative and is linked to the Commission's governance and the betterregulation initiatives.

73 See Your-Voice-in-Europe, www.europa.eu.int/yourvoice. Other examplesof important websites in this respect are Europe Direct; PreLex;Citizens Signpost Service; Solvit; Dialogue with Citizens, Dialogue withBusiness; and CONECCS, (data on formal and structured consultativebodies), infra note 74.

74 See CONECCS,www.europa.eu.int/comm/civil_society/coneccs/index_en.htm.The directory of the non-profit making civil society organisations isestablished on a voluntary basis and is only intended for information.Civil society organisations can register on the database themselves ifthey meet some basic conditions set up by the Commission. But it isimportant to note that the inclusion in the directory does not constituteany recognition on the part of the Commission. In January 2004 therewere 696 civil society organisations and 126 consultative bodiesregistered in the database.

Another internet-based initiative to improve the consultationprocess is the establishment of the single access point forconsultation called Your-Voice-in-Europe described above. Itlists all open public consultations, presents any forthcom-ing policy initiatives and provides information on how toparticipate. It is designed to receive and store reactions to newinitiatives.75

4.3.3 Minimum Standards for ConsultationGeneral principles and minimum standards for consulting non-institutional interested parties were adopted in December 2002and have been applied by the Commission since January2003.76 The minimum standards define consultation as a pro-cess through which the Commission wishes to trigger inputfrom outside interested parties for the shaping of policy priorto a decision by the Commission. Under this definition bothspecific consultation frameworks already provided for in thetreaties, consultation requirements under international agree-ments and decisions taken in a formal process of consultingMember States comitology procedure are excluded. The mini-mum standards apply when the Commission consults on majorpolicy initiatives, particularly in the context of legislative pro-posals.

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75 See COM (2001) 1014, supra note 72; and COM (2002) 704,supra note 42, p. 7.

76 See COM (2002) 704, supra note 42, p. 11. Naturally, civil society hada possibility to give its view on the Commission document before itsadoption. In this respect, the Commission first published a consultationdocument with a draft proposal, Consultation document of 5 June 2002,see COM (2002) 277, supra note 41. When the public consultation on thedraft proposal was closed on 31 July 2002 the Commission had received88 contributions. In general, the contributions welcomed the proposedguidelines. The most common concern was the duration of the minimumconsultation period and whether the guidelines should be legally bindingor not. Many contributions commented on the Commission’s distinctionbetween open and focused consultation processes. Some argued that onlyrepresentative European organisations should be consulted, while othersfelt that no interested or affected party should be excluded.

It is important to notice that the principles and standards setout in the document are not legally binding. That is becausethe Commission did not want a clear dividing line drawnbetween consultations launched on its own initiative prior tothe adoption of a proposal, and the subsequent formalised andcompulsory decision-making process according to the treaties.It also wanted to avoid a situation where a proposal ischallenged in the Court for not having gone through a properconsultation process.77 But the Commission has adoptedcertain measures in order to reassure those who fear that anon-legally binding document will have no real effect.78

When the Commission first started drafting the minimumconsultation standards, many thought that its main goal simplywas to expand the circle of the Brussels insiders in theprocess.79 However, the final version goes much further thanthat. The aim is to ensure that all relevant parties are properlyconsulted on a proposed measure, not just those whom thegovernment staff can identify in advance as interested parties.The Commission emphasises that national, regional andminority views also are important to take into account.80

According to the general principles consultation processes runby the Commission should be transparent. The Commissionmust therefore be clear on what issues are being developed,what mechanisms are being used to consult, who is beingconsulted and why and what has influenced decisions in theformulation of policy proposals. On the other hand, the Com-mission is asking the organisations to make it apparent whichinterests they represent and how inclusive that representation

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77 See COM (2002) 704, supra note 42, p. 10.78 One measure is to put in place a series of implementation measures in

order to ensure proper application and monitoring across all departments.Another is to establish a Commission intranet website that will provideCommission staff with practical guidance, including examples of bestpractice, see COM (2002) 704, supra note 42, p. 13.

79 See Shub R., Let’s all talk’ plan could bring Brussels outsiders into theEU fold, European Voice, (4–10 July 2002).

80 See COM (2002) 704, supra note 42, p. 12.

is.81 The Commission will acknowledge receiving the con-tributions and the results of open public consultations will bedisplayed on websites linked to the single access point on theInternet. The Commission states that contributions will beanalysed carefully to see whether, and to what extent, theviews expressed can be accommodated in the policy pro-posals.82 Civil society will also have a role to play in theimpact assessment procedure (see supra 4.1.2).

4.3.4 Consultation of Civil Society in theConstitutional Treaty

The political will to emphasize the citizen’s possibility tointeract with the EU institutions was also expressed withinthe work of the Convention on the future of the EU. TheIGC followed the Conventions proposals in this respect. TheConstitutional Treaty explicitly states that the Commission“shall carry out broad consultations with parties concerned inorder to ensure that the Union's actions are coherent andtransparent”.83 It also gives the civil society in general a moredirect role by spelling out the principle of democratic equalitywhich means that all citizens shall receive equal attentionfrom the Union's institutions. In addition, the EU institutionsshall, by appropriate means, give citizens and representativeassociations the opportunity to make known and publiclyexchange their views on all areas of Union action.84 Accordingto the Constitutional Treaty the EESC and the CoR will con-tinue to assist the Commission and the European Parliamentas the Union’s advisory bodies.85

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81 See COM (2002) 704, supra note 42, p. 17.82 See COM (2002) 704, supra note 42, p. 21.83 See Article I-47.3 of the Constitutional Treaty. 84 See Articles I-45 and I-47 of the Constitutional Treaty. Article I-47.4

regarding the citizen’s initiative and Article I-48 regarding the socialpartners and autonomous social dialogue may also be noted in thiscontext.

85 See Article I-32 of the Constitutional Treaty.

4.4 Involvement of Target Groups– The Focused Consultation Process

In addition to consulting civil society in general, the Commis-sion also defines target groups and actively seek input fromrelevant interested parties through what is here called focusedconsultation procedures. In this respect, the target group inquestion is provided a kind of privileged access to the Com-mission’s policy-making process. Examples of such focusedconsultation mechanisms are formal consultation groupsofficially established by the Commission, or other structuredconsultation groupings, as well as ad hoc consultationexercises with invited representatives, for example throughhearings.86

According to the Commission, the name focused does not,however, mean that access will be limited only for certaintypes of organisations. In line with the principle of opengovernance, the Commission keeps a very inclusive approachin this respect. It stresses that every individual citizen,enterprise or association can provide the Commission withinput. Still, a clear selection criterion is essential.87

The way for the Commission to decide on target groups is setout in the minimum standards for consultation of interestedparties. Accordingly, target groups consist of those affected bythe policy, those who will be involved in implementation ofthe policy or bodies that have stated objectives giving them adirect interest in the policy. The Commission must make surethat all relevant parties have been given the opportunity toexpress their views before it defines a group. Apart fromthe elements mentioned above, the minimum standards listadditional elements that the Commission should take intoaccount when defining the target groups. These elements are,for example, the wider impact of the policy on other policyareas and the need to involve non-organised interests, specificexperience or technical knowledge where appropriate. The

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86 See COM (2002) 277, supra note 41, p. 8.87 See COM (2002) 704, supra note 42, p. 11.

Commission should also strive for a proper balance betweenthe representatives or different groups, for example large andsmall organisations or organisations in the EU and those innon-member countries.88

In order to make these focused consultations more transparent,the Commission uses the database CONECCS, mentionedabove (see supra part 4.3.2). Apart from the directory of non-profit making civil society organisations, the database lists theCommission's formal or structured consultative bodies, inwhich civil society organisations participate. They haverelatively regular meetings, at least once a year. Formal con-sultative committees, such as the Advisory Committee on theCommon Agriculture Policy, are set up by a Commission de-cision. Other structured consultative bodies may, in addition tocivil society organisations, include other bodies, such asprivate companies, universities or research institutes. Some-times the Commission consults civil society organisations alsowithin the consultation structures with Member Statesrepresentatives. The website includes information about theremit, composition and working methods of these bodies.89

The idea of drawing up more extensive partnership agree-ments with a number of organised civil society sectors pre-sented in the White Paper was dropped from the final versionof the minimum standards on consultation. The aim was toallow the Commission to consult the partner sectors morewidely than the minimum standards require. It would alsohave been a way to encourage civil society organisations torationalise their internal structure. However, the EuropeanParliament disagreed with the idea of establishing closer linkswith parts of civil society organisations in the form of partner-ship agreements or accredited organisations as it did not wantcivil society organisations to be granted a role which, either

38

88 See COM (2002) 277, supra note 41, p. 8; and COM (2002) 704, supranote 42, pp. 11–12 and 19–20.

89 See CONECCS, supra note 74; and COM (2002) 277, supra note 41,pp. 8–9.

wholly or in part, was that of those elected holding politicalresponsibility. It also held that such a system could addan additional level of bureaucracy. Concern was moreoverexpressed by certain quarters within civil society who thoughtthat there would be a de facto establishment of a regime ofprivileged associations. According to the Commission, how-ever, this idea is still under consideration but given theobservations it received, it prefers a pragmatic approach toensure the success of implementing general standards.90

4.5 The Use of Expert AdviceExternal expertise makes an important contribution to thedecision-making process in the European Union. They areoften asked to perform uncontroversial scientific assessmentsbut they may also address very controversial issues wherethe evidence is not always clear or evident.91 However, thecomplex structure within which such external experts havebeen used has made it difficult to get a clear overview of thenetwork.

In order to use experts in a more structured manner and inthat way make the process more open and transparent, theCommission introduced principles and guidelines on thecollection and use of expertise. These guidelines should beseen as a complement to the general principles and minimumstandards for consultation described above (see supra part

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90 See COM (2002) 705, supra note 44, p. 16; and the European Parliamentresolution of 15 November 2001 on the Commission White Paper onEuropean Governance, C5-0454/2001-2001/2181(COS)), point 11 (e).

91 This is for example the case in matters concerning BSE (“mad-cow”-disease) and GMO's (Genetically Modified Organisms) where policieshave to be adopted in the face of significant uncertainty. These mattersare made all the more problematic given that the Union is required toapply the precautionary principle and acknowledge the role of riskassessment and risk management when deciding policy outcomes.Interested parties and the public at large should be able to know whathas led the Commission to make its decision, see COM (2002) 713,supra note 43, pp. 3–6.

4.3.3).92 They apply since January 2003 and set out coreprinciples and internal guidelines to Commission departmentsregarding collection and use of expert advice at all stages ofCommission policy-making. In other words, they should beconsidered from the initial stage when identifying the need fora policy action and the shaping of the policy options to itsproposal, implementation, monitoring and review. They applywhenever Commission departments collect and use advice ofexperts coming from outside the responsible department.93

The principles and guidelines are not legally binding, nor dothey apply to the formal stages of decision-making as pre-scribed in the Treaty and in other Community legislation.94 Theguidelines on expert advice should also be separated from theminimum standards on public consultation described above.The minimum standards are used when the Commission seeksthe view of civil society groups and other interested parties be-cause of the constituencies they represent rather than becauseof the expertise they possess.95

By introducing these guidelines, the Commission wants toimprove and enhance the use of experts for the establishmentof Community policies. This does not only include scientificexpertise but also know-how in a broad sense. The Com-

40

92 See COM (2002) 713, supra note 43.93 The principles and guidelines cover the collection of advice through ad

hoc and permanent expert groups, external consultants (individuals,groups or companies) and instances when these mechanisms are used inconjunction with in-house expertise (residing in Commissiondepartments and in the Joint Research Centre).

94 Therefore, both formal legislative procedures and the formal exercise ofthe Commission’s implementing powers with the assistance ofcomitology committees are excluded, see infra part 5.2.

95 Whenever there may be doubts as to whether the minimum standards onconsultation or the guidelines on expertise apply, the Commissiondepartments responsible will provide detailed guidance to the relevantexternal parties. See COM (2002) 713, supra note 43, p. 7. Advicereceived from EU agencies (e.g. European Environment Agency,European Food Safety Authority) should also, where appropriate, be usedin a manner consistent with the principles and guidelines.

munication has two main objectives: to help Commissiondepartments mobilise and exploit the most appropriateexpertise and to guarantee that the process of collecting andusing expert advice should be credible. In order to fulfil theseobjectives, three core principles are laid down: to seek adviceof an appropriately high quality, to act on advice from expertsin an open manner and to ensure that the methods forcollecting and using expert advice are effective and pro-portionate.96

In order to assess the impact of expert advice, any proposalsubmitted by departments for Commission decision shouldalso be accompanied by a description of the expert adviceconsidered, and how the proposal takes this into account. Thisincludes cases where advice has not been followed. As far aspossible, the same information should be made public whenthe Commission’s proposal is formally adopted. In 2005, theCommission will organise an independent evaluation of theapplication of the present guidelines.97 The use of experts willalso have a role to play in the impact assessment procedure(see supra part 4.1.2).

4.6 The Role of Regional and Local Government Although the White Paper acknowledges the difference be-tween consulting civil society and consulting local andregional government, the minimum standards for consultationdo not treat regional authorities as a distinct part of civilsociety. Many have criticised the fact that the standards do not

41

96 Underpinning the core principles are a series of guidelines regroupedunder headlines such as identifying and selecting experts, managing theinvolvement of experts and ensuring openness. It is stated, for example,that policy issues requiring expert advice should be identified as early aspossible and that the main documents associated with the use ofexpertise on a policy issue, and in particular the advice itself, should bemade available to the public as quickly as possible, providing noexception to the right of access applies. See COM (2002) 713,supra note 43, pp. 6–13.

97 See COM (2002) 713, supra note 43, pp. 11–13.

provide for individual and direct consultation of local andregional authorities. After all, representatives of the interestgroups of civil society have not been elected in publicelections and are not subject to parliamentary scrutiny. Localand regional authorities also have direct responsibility forimplementing EU policy and legislation. In response to thewishes expressed in the consultation on the White Paper, theCommission committed itself to establish a more systematicdialogue with European and national associations of regionaland local government at an early stage of policy shaping.98 Theinitiative resulted in a Communication adopted in December2003.99 The Commission presents this systematic dialogue as acomplement to other specific consultation provided for, forexample, in the Treaty or in accordance with the minimumstandards for consultation.

The reason for systematising the dialogue is to improve theprocess of developing European policies that have an impacton regions and municipalities such as regional developmentpolicy, transport, rural development or the environment. TheCommission underlines that regional and local authoritiesoften are well placed to assess the coherence and effectivenessof these policies. Therefore it hopes that their involvementwill enable the Commission to take more effective decisionsand to assess their impact. The dialogue is designed toencourage these bodies to make their views known before theformal decision-making processes are launched.100 The Com-munication sets out a number of essential principles thatshould govern the Commission’s relations with the associa-

42

98 See COM (2002) 705, supra note 44.99 See COM (2003) 811, supra note 47. To prepare this communication,

the Commission adopted a staff Working Paper on the ongoing andsystematic policy dialogue with local-government associations in March2003. It was published on the Internet as part of a process of publicconsultation; see Commission Working Paper of 28 March 2003 onan Ongoing and systematic policy dialogue with local-governmentassociations.

100 This dialogue will not prejudice the specific consultations provided forin the Treaties.

tions of local and regional authorities. It also defines thescope of this dialogue.101

In practice, the dialogue will take the form of regular hearingswith European and national associations of regional and localauthorities. The reason for defining the appropriate partners asassociations is to achieve efficiency since, following theenlargement, the Union will include about 250 regions and100 000 local authorities.102 The Commission therefore wantsto organise a dialogue with representatives that are able bothto deliver a collectively agreed opinion from their membersand to pass on to them the Commission’s proposals and policyguidelines. Local authorities will, of course, still be able toexpress their individual views directly, within the consultationslaunched by the Commission, notably through the Internet.Furthermore, the Commission seeks to enhance the inter-mediation role played by the Committee of the Regions (CoR)and calls on it to identify the relevant associations in thisdialogue on a case by case basis. It is the task of the CoR toco-operate with the different associations in order to establishthe selection criteria. On the basis of proposals made by theCoR, the Commission will then decide the list of associationsparticipating in the meetings. It may also amend or addassociations to the lists.103

In the preparatory working paper leading to the Communica-tion, it was suggested that the Commission would invite theCoR to organise meetings with European and national associa-tions of regional and local government. However, in the finalversion the Commission states that it is responsible for

43

101 See COM (2003) 811, supra note 47, pp. 3–5102 See COM (2003) 811, supra note 47, p. 5.103 The Commission considers that the CoR is best placed to identify the

associations concerned by the various policies in question and suggestindicative lists of European and national associations relevant to thesubjects to be discussed. These lists should contain associationsrepresented at the highest level which are concerned by the policy,involved in implementing the policy or have a direct interest in thepolicy. See COM (2003) 811, supra note 47, pp. 6–7.

organising and holding the meetings. The systematic dialoguewill be instituted based on the presentation of the Commis-sion’s annual work programme or the major policy initiativethat have a direct or indirect territorial impact.104 It may alsobe noted that the Treaty includes articles of importance forregions and local authorities in this respect.105

4.7 The Use of Key Networks The Commission has also acknowledged the growing socialand political importance of networks that link business,communities, research centres, and regional and localauthorities in a non-hierarchical way. The White Paper statedthat networks could make a more effective contribution to EUpolicies if they were made more open and their relation withthe institutions were better structured. The Commission there-fore envisaged developing a more systematic and proactiveapproach to working with key networks in order to enable themto contribute to decision-shaping and policy execution. It alsowanted to present proposals by the end of 2003 on how theframework for trans-national cooperation of regional and localactors could be better supported at EU level. The Commissionhas already been able to encourage the interactive communica-tion that these organisations increasingly use to link to theirnational and local bases through its internet based initiatives,such as the Interactive Policy Making (IPM) accounted forabove (see supra part 4.3.1). The European consumer centrenetwork covering 14 European consumer centres in 12 MemberStates and the Euro Info Centre network are examples of net-works participating in the IPM initiative.106

44

104 See COM (2003) 811, supra note 47, pp. 7–8.105 Article I-5.1 of the Constitutional Treaty contains a clause guaranteeing

respect for the constitutional structure of each Member State, inclusiveof regional and local self-government. The Protocol on the principle ofsubsidiarity also makes provision for wide-ranging consultation beforeany legislative act is adopted, with the possibility of taking into accountthe regional and local dimension of the action envisaged.

106 See COM (2001) 428, supra note 3, p. 18; and COM (2002) 705,supra note 44, pp. 17–18.

4.8 Conclusion Summing up the initiatives made to follow up the proposals inthe White Paper at the initiating stage of the decision-makingprocess three things may be noted (see Table 2 below). First,the Commission has realised almost everything set out in theWhite Paper for this stage. Second, the Commission hasfocused on systematising the existing processes, making themeasier to understand and to apply through setting up uniformstandards and databases, rather than coming up with newinitiatives at this stage. Third, the system envisaged is basedon a bottom-up approach where civil society at large plays asignificant role in giving input to the Commission at anearly stage of the process. Key networks, target groups,expert groups and regional and local governments are given amore privileged role in the process. The main part of theproposals lies in what the Commission itself sets out to do,i.e. the impact assessment procedure, and work improvingtransparency and openness. The next chapter will describe theproposals at the implementing stage of the decision-makingprocess.

45

46

Tabl

e 2

Phas

e O

ne

– Th

e G

over

nan

ce R

efor

m a

nd

Shap

ing

of P

olic

y

Co

un

cil

of

Min

iste

rs

Eu

rop

ean

Parl

iam

en

t

Pro

posal

EE

SC

- A

rtic

les 1

37-1

39 E

C T

reaty

CoR

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Art

icle

s 1

37-1

39 E

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reaty

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le w

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lo

cal

gov

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men

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associa

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re i

nvolv

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CO

MM

IS

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ts r

ight

of

init

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ve i

n a

mo

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arg

ete

d w

ay

-

Inte

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w p

roposals

whic

h a

re n

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onger

topic

al

-

Imp

rov

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ran

sp

are

ncy

an

d o

pen

ness b

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to

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m f

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en

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pre

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t)

47

Civ

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t la

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2)

civ

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om

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ideli

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fro

m o

uts

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the C

om

mis

sio

n

5 PHASE TWO – THE GOVERNANCE REFORMAND IMPLEMENTATION OF POLICY

5.1 IntroductionThe following chapter will examine the measures taken by theCommission to follow-up the proposals for improving thedecision-making process at the implementing phase. In thisrespect, the use of experts according to the Commission’sguidelines accounted for above is also relevant as they applyat all stages of Commission policy-making (see supra part4.5). Compared to the initiating phase, the Commissions pro-posals at this stage are more focused on reforms rather thanon improving the existing system. In the following the Com-mission’s proposal on reforming comitology, on involvingregional and local government, on the use of regulatoryagencies and finally on how to involve the market practi-tioners through co-regulation and self-regulation will be de-scribed.

5.2 Reforming Comitology 5.2.1 IntroductionAccording to Article 202 of the EC Treaty, the Council shalldelegate powers to the Commission to implement legislation.The Court of Justice has repeatedly stated in its case law thatthis solution rests on the idea to “distinguish between the ruleswhich, since they are essential to the subject matter envisaged,must be reserved to the Council’s power, and those whichbeing merely of an implementing nature may be delegated tothe Commission” (emphasises added).107 Thus, the Council isrequired to transfer a considerable part of the responsibilityfor lawmaking to the Commission.108 Quite logically, the

48

107 See, for example, Case 25/70 Einfuhr- und Vorratsstelle für Getreide undFuttermittel v Köster, Berodt & Co [1970] ECR 1161, paragraphs 6and 9; and Case 240/90 Germany v Commission [1992] ECR I-5383,paragraph 36.

108 The Council may also reserve the right, in specific cases, to directlyexercise implementing powers itself.

Council is also entitled to impose certain requirements on theCommission when delegating this power to legislate. Inpractice the mechanism for political control by the Council onthe Commission is exercised through the use of committeescomprising representatives from the Member States andchaired by the Commission. This system is commonly referredto as comitology.109

Under the Council Decision 1999/468/EC, the so calledcomitology decision, which currently governs the comitologyprocess, there are three types of procedures: the advisoryprocedure, the management procedure and the regulatoryprocedure. The difference between these procedures lies inthe degree of involvement and power of Member State’srepresentatives, in other words the extent to which the Com-mission is legally compelled to follow the committee’sopinion. Under the most restrictive procedure, the regulatoryprocedure, the Commission can only proceed to adopt theimplementing measure if the opinion is positive. The Euro-pean Parliament only has a very limited right of supervisionover the Commission in this respect. It may object when itfeels that the Commission is exceeding its powers. However,the Commission is not obliged to follow the opinion of theEuropean Parliament, only to re-examine the matter.110

Comitology has come under criticism as forming part of EU’s“democratic deficit”. In the White Paper the Commissionaddresses that criticism and proposes re-examining the con-ditions under which it adopts implementing measures. Instead,it advocates a system where legislation defines the conditionsand limits within which the Commission carries out itsimplementing role instead of the current comitology system.The Council and the European Parliament should focus moreon political direction, leaving implementation to the executive,

49

109 See, in general, Bergström, C.F., supra note 32.110 See Council Decision 1999/468 of 28 June 1999 laying down the

procedures for the exercise of implementing powers conferred on theCommission (OJ 1999 L 184/23).

i.e. the Commission. According to the Commission, thisreform would result in a simpler and faster decision-makingprocedure. Additionally the accountability would improve.111

A reform changing the comitology system requires thatArticle 202 in the EC Treaty is amended. Since the govern-ance reform according to the White Paper should be achievedwithin the existing treaties, the Commission has chosen toapproach the aim to reform the comitology system in twoways. On a more long-term basis it has promoted the amend-ment of Article 202, in order to establish a new system fordelegating powers, within the work of the Convention on thefuture of the EU (see infra part 5.2.3). But as a temporarymeasure, the Commission has also taken an initiative toreform parts of the current comitology system.

5.2.2 Proposal for Amending the CurrentComitology Decision

Given the relatively long period which will elapse before anew treaty may come into force, the Commission has taken aninitiative to reform the current comitology system within, atleast what it claims, the limits of the existing treaty pro-visions. However, it stresses that this proposal to amend thecomitology decision should only be seen as a temporarymeasure.112 As already stated in the White Paper, the Commis-sion stresses the need for reforming the comitology pro-cedures by pointing at the growth of co-decision. According tothe Commission, the primary purpose of the proposal is there-fore to increase the role of the European Parliament in theimplementation of legislation decided by co-decision. TheCommission also sees the reform as a way of clarifying theexercise of executive functions. But it is clear that an im-portant part of the reform is also to give the Commissionmuch more responsibility when exercising its powers in thisrespect.

50

111 See COM (2001) 428, supra note 3, p. 31.112 See COM (2002) 719, supra note 43.

The proposal was first presented on 11 December 2002 andlater amended on 22 April 2004 with regards to some of theobjections raised by the European Parliament (see infra part8.4). It entails three major changes. First, it tries to place theEuropean Parliament and the Council on an equal footingduring the supervisory phase of the comitology process bygranting the European Parliament co-decision status with theCouncil when supervising the implementing powers conferredon the Commission.113

Secondly, the Commission proposes to reduce the number ofprocedures from three to two. It abolishes the managementcommittee procedure and makes the least restrictive advisorycommittee procedure the standard one.114

Thirdly, the proposal envisages that the choice of the tworemaining procedures, in relation to measures adopted underco-decision, should be prescribed and no longer left to thediscretion of the legislating institution. The existing regulatoryprocedure, i.e. the most restrictive one, is revised for im-plementing measures under co-decision by introducing twodistinct phases. In the initial phase, the Commission will beresponsible for drawing up implementing measures. The com-mittee can influence the substance of the measure by deliver-ing an unfavourable opinion. However, it is ultimately theCommission that is responsible for the substance of the draft.In the second phase, both the European Parliament and theCouncil may oversee the executive role of the Commission byexpressing opposition to the Commission’s draft implementingmeasure. In that case, the Commission has four choices. Itmay, taking the objections into account, present a legislativeproposal, make a modification of its draft, adopt the originaldraft without changes, or, finally, withdraw its draft. Thus, theCommission would be able to override the European Parlia-

51

113 See Article 2 of the proposal, COM (2002) 719, supra note 43.114 See Article 1 of the proposal, COM (2002) 719, supra note 43.

ment and the Council and in no way be obliged to follow theopinion of the legislators.115

The main substantive changes in the amended proposal,compared to the original proposal, are that the Council alwayshas to react to any European Parliament position that theCommission proposal is ultra vires, that the deadline for thelegislators to raise objections has been extended by one month,that the Commission must make all relevant documentsavailable at the Internet and that all relevant information mustbe at the European Parliaments disposal. Furthermore, theamended proposal includes a paragraph in the recital statingthat the decision shall not affect the Lamfalussystructure in thefield of financial services (see infra part 7).116

The Commission claims that this proposal falls within thelimits of existing Treaty provisions. However, by givingadditional powers to the European Parliament in comitology, itmay go beyond the scope of Article 202 in the EC Treaty.117

52

115 See Article 1 of the proposal, COM (2002) 719, supra note 43, andAmended proposal for a Council decision amending Decision1999/468/EC laying down the procedures for the exercise ofimplementing powers conferred on the Commission, COM (2004) 324final. See also House of Commons, European Scrutiny Committee,Thirty-seventh report of session 2002-03, published 26 November 2003.Additionally, if the deadlines set for the regulatory procedure are notmet, provision is made for an urgent procedure to enable theCommission to adopt executive measures immediately without prejudiceto subsequent supervision by the European Parliament and the Council.

116 See COM (2004) 324 final, supra note 115. See also, House ofCommons, European Scrutiny Committee, Twenty-third report of session2003-04, published 1 July 2004.

117 The British Minister for Europe, Mr Denis MacShane has raised thequestion whether the Commission proposal rested on the correct legalbase and also addressed the question to the Council Legal Service. SeeHouse of Commons, European Scrutiny Committee, Thirty-second reportof session 2002–03, published 26 September 2003, pp. 31–33; andHouse of Commons Thirty-seventh report, supra note 115, pp. 16–18.

5.2.3 Amendment of Article 202 of the EC TreatyThe Commission’s vision of a more long-term based solutionfor amending the current comitology system was expressed ina communication to the Convention in December 2002suggesting that the powers to implement European legislationin the future should be entrusted exclusively to the Commis-sion. It proposed a classification of legislative norms in threelevels: institutional laws, laws adopted under the co-decisionprocedure and regulations adopted by the Commission, for thepurposes of implementing laws. At the second level, the lawscould make provision for the power of legislation to bedelegated to the Commission for the purpose of amendinglegal instruments adopted by the legislator, for instance, with aview to adapting them in the light of technical progress. TheCommission should only be able to exercise this power withinthe limits and subject to the conditions of its legislative delega-tion. Instead of the current control of the Council set out inArticle 202 of the EC Treaty, the European Parliament and theCouncil would exercise an ex-ante control, for examplethrough a call-back system. In other words, if the legislatorswere to come out against the measure, the Commission wouldwithdraw its draft, amend it or present a proposal to thelegislator.118

The outcome of the Convention and the IGC must in thisrespect please the Commission. The hierarchy of legal actspresented in the final Constitutional Treaty does to large

53

118 See COM (2002) 728 final/2, supra note 45, p. 7. See also Workingdocument of 7 November 2002 to the Working Group IX onSimplification, Proposal to distinguish legislative and executivefunctions in the institutional system of the European Union, paper byMr. Ponzano, member of the Convention and Commission'srepresentative in the Group, WD 16.

extent realise what the Commission wished for.119 The systemset out in the current Article 202 will therefore change incharacter if the draft Treaty enters into force.120

5.3 Involvement of Regional and LocalGovernment through Tripartite Contracts

In the same way as the Commission wants the regions andlocal government to be involved and consulted at the policyinitiating stage, it also finds it necessary to involve this levelat the implementing stage. One suggested way is throughthe use of the so-called tripartite-contracts and agreementspresented in the White Paper. They would mainly be con-cluded in the areas of regional and environmental policy butmay also be relevant to use in other areas, for example socialpolicy. After the idea to introduce these contracts waslaunched, DG Environment took the initiative to start pilotprojects in the area. The intention to proceed with introducingtripartite contracts was strengthened when the Commissionadopted a communication on a framework for target-basedtripartite contracts in December 2002, examining what form

54

119 Articles I-34 – I-37 of the Constitutional Treaty establishes a hierarchyof legal acts where the mechanisms of control of delegated acts areoperated ex-ante by the legislator. A non-exclusive list enshrined inArticle I-36 includes two types of control mechanisms: a right for theEuropean Parliament or the Council of Ministers to call-back thelegislation and a possibility to prescribe that delegated acts will onlyenter into force if the European Parliament or the Council of Ministershave not expressed any objections. According to Article I-37.3 theEuropean laws, i.e. laws adopted under the procedure that today isreferred to as co-decision, shall lay down in advance rules and generalprinciples for the mechanisms for control by Member States of Unionimplementing acts. Also relevant in this respect is the declarationannexed to the Constitutional Treaty in which states “…the Commis-sion’s intention to continue to consult experts appointed by the MemberStates in the preparation of draft delegated European regulations in thefinancial services area, in accordance with its established practice”,see infra part 7.

120 See, in general, Bergström, C.F. and Rotkirch, M., Simply Simplificaion?The Proposal for a Hierarchy of Legal Acts, Sieps 2003:8.

such contracts should take.121 It contains a number of generalcharacteristics of tripartite contracts and agreements relatingto scope, actors and certain arrangements for participation andinformation in the implementation process. However, theCommission will only consider the possibility of target-basedcontracts after assessing the lessons drawn from launchingpilot target-based agreements.122

Whereas tripartite contracts are concluded between the Com-mission, representing the European Community, a MemberState and regional and local authorities in direct application ofbinding secondary Community law, tripartite agreements areconcluded outside a binding Community framework. Accord-ing to the Commission, the contracts and agreements can bejustified when there is a proven case of enhanced politicalbenefits, efficiency gains, the involvement of regional and/orlocal authorities and if they can lead to a speedier perform-ance. But they may only be envisaged where they do notconflict with the constitutional systems of the Member States.The Commission will also base its decision on concludingsuch contracts with regard to available human and financialresources. In fact, the financial aspect might be the greatestobstacle to the conclusion of such contracts and agreements asthey will not qualify for additional Community financing.123

Any one of the future contracting parties may take theinitiative to establish a tripartite contract or agreement. Theminimum objectives to be concluded in the contract will bespecified in the basic legislative instrument. This instrumentmust always include an enabling clause by which, inaccordance with Article 202 of the EC Treaty, the legislatorauthorises the Commission to conclude such contracts. As fortripartite agreements, minimum basic objectives are to bededuced from relevant preparatory documents. Finally, con-

55

122 So far three agreements have been launched by DG Environment:in Lille, in Birmingham and in Pescara. DG Environment adopted anAction Plan Governance in 2002.

123 See COM (2002) 709, supra note 43, p. 5.

siderable information will have to be provided on the content,implementation and results of the contractual or agreement-based approach. Regional and local authorities concerned willhave to consult and involve organisations representing localand regional life as much as possible. The Commission has tosubmit an evaluation and follow-up report to the EuropeanParliament, the Council and the Committee of the Regions.124

5.4 The Use of Regulatory Agencies

During the last decade, significant responsibilities have beenassigned to an increasing number of EU-agencies. Theseagencies are bodies with a legal personality of their ownwhich have been established in order to accomplish spe-cific technical, scientific or managerial tasks.125 In the WhitePaper on governance, the Commission argued that so-calledregulatory agencies should be created in order to increase theeffectiveness of the executive and improve the way rules andpolicy is applied. Quite clearly, such agencies have an im-portant place in the broader picture suggested by the Com-mission (where the Council and the European Parliamentfocuses on political direction, leaving implementation to theexecutive).126 In line with this, in its contribution to the Con-vention on the Future of the EU, the Commission proposedthat a provision setting out the criteria for establishment,running and monitoring of regulatory agencies should beinserted. However, such an article was never introduced in theConstitutional Treaty.127

The Commission chose to follow up this matter in a Com-munication on the operating framework for the EuropeanRegulatory Agencies. It is not a proposal for a specific legalact. Instead, the Commission invites the European Parliament

56

124 See COM (2002) 709, supra note 43, pp. 3–4.125 See Bergström, C.F. and Rotkirch, M., Decentralised Agencies and the

IGC: a Question of Accountability, Sieps 2003:14.126 See COM (2001) 428, supra note 3, pp. 24, 31 and 32.127 See COM (2002) 728/2, supra note 45, p. 13.

and the Council, together with the Commission, to define theframework criteria for recourse to the agencies in question viaan appropriate legal instrument. Such a framework would setup the criteria for the creation, operation and supervision ofnew regulatory agencies.128 In this Communication the Com-mission identifies two types of agencies although some of theexisting agencies in the Union do not fall into either of thesecategories, (see infra part 9).

The first type, executive agencies, are responsible for purelymanagerial tasks, i.e. assisting the Commission in implement-ing the Community’s financial support programmes, andis subject to strict supervision by it.129 The second type ofagencies is called regulatory agencies. They on the other handwould be required, according to the Commission, to be activelyinvolved in the executive function by enacting instrumentswhich help to regulate a specific sector. In practice, eachregulatory agency would normally be responsible for a varietyof tasks which means that any classification based on themwould tend to be artificial. However, for the purposes of theframework in question, the Commission makes the distinctionbetween the decision-making agencies i.e. those empowered,inter alia, to enact legal instruments binding on third parties,and executive agencies (not to be confused with the executive

57

128 See COM (2002) 718, supra note 43. Most of the existing agencies havebeen created on the basis of Article 308 EC Treaty. This article requiresunanimity of the Council. See Bergström, C.F. and Almer, J., TheResidual Competence: Basic Statistics on Legislation with a Legal Basisin Article 308 EC, Working Document available at www.sieps.se. It may,however, be noted that the decisions to establish the most recent agencieshave been taken by the Council and the European Parliament inaccordance with the so called co-decision procedure. The Commissiondoes also argue in its communication that the legal instrument creating aregulatory agency in the future should be based on the provision of theTreaty which constitutes the specific legal basis for that policy.

129 A regulation laying down the statue for executive agencies alreadyexists: Council Regulation 58/2003/EC of 19 December 2002 layingdown the statue for executive agencies to be entrusted with certain tasksin the management of Community programmes (OJ 2002 L 11/1).

agencies referred to above), i.e. those which have no inde-pendent power of decision vis-à-vis third parties but performall other regulatory tasks, including the organisation and co-ordination of activities which, in part, fall within the remit ofnational authorities, in order to enable the Commission todischarge its duties.

The Commission’s concept regulatory agency creates someconfusion and possibly misunderstandings. On the one handthese agencies are envisaged to regulate a specific sector insome cases and to adopt individual decisions in a clearlyspecified area of Community legislation that might result incodifying certain standards.130 On the other hand the Commis-sion emphasises that they would not be empowered to adoptlegislative measures of general application.131

In the Commission’s view, it is important that regulatoryagencies have a certain degree of organisational and functionalautonomy and that they are accountable for the action theytake. However, the Commission itself wants to continue tohave the ultimate responsibility, to ensure unity and integrityof the executive function. In order to achieve this balance theCommission suggests that it indirectly has a strong role insupervising the activities of regulatory agencies. The existingagencies are not organised according to a common systemalthough many common features in their organisation may bedistinguished. Most typically, there is a strong representationby the Member States and a more limited representation bythe Commission in the composition of the supervisory board.The agency director is usually appointed by the supervisoryboard on a proposal from the Commission. In certain casesthe director shall be appointed by the Commission132 or the

58

130 Existing agencies, such as the Office for Harmonisation in the InternalMarket and the European Agency for Aviation Safety already adoptindividual decisions binding on third parties.

131 See COM (2002) 718, supra note 43, point 4.2, p. 8.132 The European Agency for Co-operation, the European Centre for the

Development of Vocational Training and the Foundation for Improve-ment of Living and Working Conditions.

Council.133 The Commission therefore envisages a strongerrole for itself in general by suggesting in the Communicationthat the administrative board should be equally represented bythe Commission and the Council. Interested parties should berepresented but without voting rights. The Commission alsosuggests that, based on a list of candidates put forward by theadministrative board, it should appoint, and if necessarydismiss, the director. Finally, the Commission would like thedecision-making agencies’ internal organisation for boards ofappeal to deal with any complaints arising from decisions theyadopt by third parties prior to any referral to the Court of FirstInstance. The European Parliament and the Council shouldhave certain powers with regard to the political supervision ofthe agency.

5.5 Involvement of the Sectors Concerned According to the Commission, implementing measures maybe prepared within a framework of co-regulation under certainconditions. In the White Paper co-regulation is defined assomething that “combines binding legislative and regulatoryaction with actions taken by the actors most concerned”.134 Inother words, within the framework of a legislative act co-regulation makes it possible to implement the objectivesdefined by the legislator through measures carried out byactive and recognised parties in the field concerned.

The idea is thought to achieve a better compliance with therules by involving the actors affected by the legislation in theprocess of preparation and enforcement of the legal act.According to the Commission, co-regulation should only beused “where it clearly adds value and serves the generalinterest”.135 The participating organisations should be

59

133 The Community Plant Variety Office and the Office for Harmonizationin the Internal Market. In these cases, it is also the Council who shallexercise disciplinary authority over the agencies’ directors as well asover other officials.

134 See COM (2001) 428, supra note 3, p. 21.135 See COM (2001) 428, supra note 3, p. 21.

representative, accountable and capable of following openprocedures in formulating and applying agreed rules. Co-regulation should not be used when major political choices arecalled into question or when rules need to be applied in auniform way in all Member States. If the use of co-regulationfails to deliver the desired result it will always be possible forpublic authorities to intervene and establish the specific rulesneeded. Co-regulation has, for example, been used for agree-ing on product standards under the so-called “New Approach”directives and in the environmental sector when reducing caremissions. The Commission remains convinced that co-re-gulation is an option for focusing legislative work on essentialelements and for simplifying and improving implementation.136

Self-regulation concerns a large number of practices, commonrules, codes of conduct and voluntary agreements whicheconomic operators, social players, NGO’s and organisedgroups establish on a voluntary basis in order to regulate andorganise their activities. Unlike co-regulation, self-regulationdoes not involve a legislative act. The Commission underlinesthat such non-binding rules as self-regulation are part of the“broader solution” of which legislation is one part. It istherefore necessary “for more thought to be given” to theselection of policy instruments.137

In an inter-institutional agreement between the Commission,the Council and the European Parliament the criteria forco-regulation and self-regulation are defined. According tothe agreement co-regulation means “the mechanism wherebya Community legislative act entrusts the attainment of theobjectives defined by the legislative authority to partieswhich are recognised in the field…”.138 In the explanatory

60

136 See COM (2001) 428, supra note 3, pp. 21–22. 137 See COM (2001) 428, supra note 3, p. 20.138 See European Parliament decision of 9 October 2003 on the conclusion

of the inter-institutional agreement on Better Law-Making between theEuropean Parliament, the Council and the Commission, 2003/2131/ACI,paragraph 18.

memorandum the Commission will have to explain to thecompetent legislative authority its reasons for proposing theuse of co-regulation. The scope and extent of possible co-regulation will be set out in the basic legislative act. Theparties concerned may then conclude voluntary agreementsthat will be forwarded by the Commission to the legislativeauthority. The Commission will verify whether or not theagreements comply with Community law. Furthermore, theEuropean Parliament or the Council may include a provisionfor a two-month period in the basic legislative act duringwhich each institution may suggest amendments to theagreement, object to the entry into force of the agreementand/or suggest that the Commission submit a proposal for alegislative act.139

Self-regulation is defined as “the possibility for economicoperators, the social partners, non-governmental organisationsor associations to adopt amongst themselves and for them-selves common guidelines at European level…”.140 Accordingto the inter-institutional agreement, the Commission will makesure that self-regulating measures comply with the EC Treaty.Since self-regulation is voluntary it can only be used if themarket actors themselves initiate it. This could be a means ofavoiding over-legislation at the European level but self-regulating measures adopted do not prevent the Commissionfrom putting forward a proposal for a legislative act.141

5.6 Conclusion In Table 3 below, the Commission’s proposals for following-upthe White Paper agenda at the stage of implementing decision-making are summarised. Compared to the initiating phase theCommission envisages a level-down approach at this stage andthe Commission also has a very clear agenda of its own for

61

139 See paragraphs 18-20 of the inter-institutional agreement, supra note138.

140 See paragraph 22 of the inter-institutional agreement, supra note 138. 141 See paragraph 23 of the inter-institutional agreement, supra note 138.

this part of the process. The legislators should adopt frame-work legislation and then co-operate in the supervision of theimplementing measures adopted by the Commission. TheCommission also wants to leave some of the regulatorypowers to independent agencies and have a stronger role insupervising their activities. Finally, the transposition intonational law and the enforcement would be improved throughintroducing tripartite contracts and involving the marketpractitioners and end-users. As was mentioned in the introduc-tion to this chapter, the proposals for this stage of the processare very reform-oriented and much more dependent on theapproval of the other institutions for their effect compared tothe proposals at the first stage. The next chapter will describethe proposals regarding the final phase of the decision-makingprocess, the monitoring phase.

62

63

64

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6 PHASE THREE – THE GOVERNANCEREFORM AND MONITORING OF POLICY

6.1 IntroductionThe prime responsibility for applying Community law lieswith national administrations and Courts but it falls to theCommission to monitor the transposal and proper applicationof Community law where necessary. The Commission’s re-sponsibility for monitoring the application of Community lawis set out in Article 211 of the EC Treaty stating that “theCommission shall ensure that the provisions of this Treaty andthe measures taken by the institutions pursuant thereto areapplied”. In Article 226 of the EC Treaty, the Commission isgiven the means to take action against a Member State forfailing to fulfil an obligation under the Treaty. The prosecutionof suspected infringements of Community legislation isconducted in several stages: first the Commission recordspotential infringements, after an examination it may proceedby sending a Member State concerned a letter of formal noticefollowed by a reasoned opinion and, as a last resort, it mayrefer the case to the Court of Justice.142 The Commission’s rolein this respect is often described as guardian of the Treaty.

The proposals set out in the White Paper aiming at improvingthe Commission’s role as guardian of the Treaty (see suprapart 3.4) were developed in a Communication on bettermonitoring of the application of Community law, adopted inDecember 2002.143 The Communication aims not only at meet-ing the Commission’s permanent concern in this field but alsoat taking up the challenge of the forthcoming enlargement.144

It distinguishes between preventive measures carried out incooperation between the Commission and the Member States

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142 See Article 226 of the EC Treaty. See also COM (2002) 725, supra note43.

143 See COM (2002) 725, supra note 43.144 See 20th Annual Report on Monitoring the Application of Community

Law (2002), Brussels 21 November 2003, COM (2003) 669 final, p. 11.

to avoid infringements and effective management of controlsand action against infringements.145

6.2 Improvements in the Prevention ofInfringements

Among the possible preventive measures the Commissiondiscusses are a variety of practical cooperation instruments,such as delivering interpretative communications on a specificmatter of community law, publicising an annual report onmonitoring the application of Community law in order to putpeer pressure on Member States and developing a trainingprogramme in Community law for national administrationsand the judiciary. However, no concrete commitments aremade in this respect.146

The emphasis is instead put on monitoring and facilitating thetransposal of directives. The Commission undertakes toimprove its regular publication of transposal rates by startingto publish, on-line, much more detailed information on howMember States implement directives. It also commits itself tomake a more generalised use of so called “package meetings”,not only after but also before an infringement procedure hasbeen initiated against a Member State. These meetings providean opportunity for the Commission to discuss the problemswith transposal of directives with the competent nationalauthorities and give them technical assistance.147 Furthermore,the Commission will in certain cases draft guidelines fortransposal which would be recommended to the nationalauthorities.148

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145 See COM (2002) 725, supra note 43, p. 4.146 See COM (2002) 725, supra note 43, pp. 5–6. In the Constitutional

Treaty, Article III-285 introduces, in line with the thinking of the WhitePaper on Governance, the concept of administrative cooperation amongthe Member States in respect of implementing Union law.

147 In this respect, it is very important that the Commission can identify theappropriate contacts. It therefore suggests that Member States should setup appropriate coordination points.

148 See COM (2002) 725, supra note 43, pp. 7–8.

6.3 Effective Management of Controls andAction Against Infringements

The Communication on better monitoring of the application ofCommunity law sets out a priority criteria by listing infringe-ments that the Commission will regard as serious and thereforeprioritise when exercising its role as guardian of the Treaty:

• Infringements that undermine the foundations of the rule oflaw, such as national court rulings that conflict with Com-munity law or violations of human rights,

• infringements that undermine the smooth functioning of theCommunity legal system, such as repetition of an infringe-ment in the same Member State within a given period and,

• infringements consisting of the failure to transpose or theincorrect transposal of directives.

By developing this priority criteria relating to the seriousness,the Commission hopes that it will manage its monitoring workrapidly and fairly. It also commits itself to annually assess theapplication of this criterion.149

Furthermore, the Commission stresses the need for a closercooperation between itself and Member States in investigatinginfringements. It will therefore make a more systematic use ofinfringement proceedings for breach of Article 10 of the ECTreaty when Member States are reluctant to cooperate in in-fringements proceedings. Additionally, proceedings in thesecases should be accelerated to last no more than four monthsbetween the letter of formal notice and referral to the Court.150

In cases where Member States have failed to implement adirective, the Commission states that it will decide on sendinga reasoned opinion six months after the Member State inquestion has received a letter of formal notice unless it hasresponded to it. In order to speed up the process of bringingimplementing legislation into line, the Commission willfurthermore produce implementing reports systematically in

68

149 See COM (2002) 725, supra note 43, pp.11–12.150 See COM (2002) 725, supra note 43, p. 14.

some sectors. Finally, in the event of recurring difficultieswith the application of the same directive, the Commissionwill consider introducing a legislative initiative to resolve theproblem.151

Apart from the infringement procedure, the Communicationmentions other means to achieve better enforcement of Com-munity law. The Commission wants to promote the use ofmechanisms that complement infringement proceedings, suchas the SOLVIT problem-solving network, since it finds thatthey often result in a more effective handling of cases.152 TheCommission also urges citizens to make more use of theirright to bring cases before national courts and ultimatelyclaim compensation for damages caused them by infringe-ments of Community law or failure to transpose directives.This mechanism is a very effective way to make MemberStates comply with Community law. The Commission willtherefore try to do more to promote this possibility, forexample by making reference to it in press releases aftermajor infringement proceedings are terminated.153

Some results of the commitments made in the White Paper andthe Communication described above can be found in theannual report on better lawmaking for the year 2003. Forexample, the Commission now routinely includes a provisionin draft directives which requires Member States to provide theCommission with structured and detailed information on howCommunity law has been transposed into national law. An on-line site entitled “Calendar for transposition of Directives” hasalso been set up. It allows Member States and citizens to con-sult on a regular basis the deadlines applicable for transpositionof Community directives. Finally, the new electronic standard

69

151 See COM (2002) 725, supra note 43, pp. 18–19.152 Individuals who have encountered unjustified obstacles within the

national administration of a Member State when trying to exercise theserights may seek assistance in solving the problem from a network ofoffices located in the Member States so called SOLVIT Centres.

153 See COM (2002) 725, supra note 43, pp. 15–17 and 19.

form for notification of national implementing measures iscurrently being introduced by the Commission. It may also benoted that the Commission adopted recommendations on thetransposition into national law of Directives affecting theinternal market in July 2004.154

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154 See Recommendations from the Commission on the transposition intonational law of Directives affecting the internal market,Brussels 12 July 2004, SEC (2004) 918final.www.europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#calendar. See also COM (2003) 669, supra note 144, and theCommission’s website on Governance,www.europa.eu.int/comm/governance/governance_eu/comm_law_en.htm.

7 GOVERNANCE REFORM IN PRACTICE7.1 IntroductionIn the following chapter an example will be given of how thegovernance reform works in practice. As has been showedabove, the agenda set out in the White Paper has been realisedthrough several measures taken during the last couple ofyears. Parts of the reform are being applied within differentpolicy sectors and at the different phases, such as theminimum standards on consultation that now govern all con-sultations conducted by the Commission. Some examples havebeen touched upon above, such as the new impact assessmentprocedure (see supra part 4.1.2). Other parts of the reformmight best be exemplified through different cases, such as theexample of how the Commission proposed to change thedecision-making process in the field of anti-dumping measuresby suggesting that the Council should delegate more decision-making power to itself.156 Other examples of parts of thegovernance reform can be found in other policy areas.

In this chapter, we have chosen to describe a reform of onesector, the European Securities Market. By doing so, we want

71

155 See Proposal for amending Council Regulation (EC) No 384/96 onprotection against dumped imports from countries not members of theEuropean Community and Regulation (EC) No 2026/97 on protectionagainst subsidised imports from countries not members of the EuropeanCommunity, COM (2003) 380 final. The Commission suggested that theprocedure for imposing a definitive anti-dumping duty should beamended. Instead of a system where the Council, acting by a simplemajority, imposes the duty, the Commission proposed the following: “(…) a definitive anti-dumping duty shall be imposed, after consultation,by the Commission provided that there is no objection raised within theAdvisory Committee. In all other cases, the Commission shall submit tothe Council forthwith a report on the results of the consultation, togetherwith a draft regarding the imposition of a definitive anti-dumping duty.The definitive anti-dumping duty shall be deemed to be imposed by theCommission if, within one month, the Council, acting by a simplemajority, has not decided otherwise.”.

156 See 2283rd meeting of the Council (Economic and Financial Questions),held in Brussels on 17 July 2000, pp. 7–10.

to give a practical illustration of how the governance reformenvisaged by the Commission may function. Even though thereform of the securities sector was neither initiated norproposed by the Commission itself, the reform builds, to alarge extent, on the same ideas as presented in the WhitePaper. It may therefore serve as a good example.

The reform of the securities market started in 2000 when itwas clear that it was lagging behind the comparable marketsof insurance and banking in terms of harmonisation. Anindependent group of Wise Men was set up by the Council forEconomic and Financial Affairs (ECOFIN) on 17 July 2000156

with the mandate to propose how to make the securitiesmarket keep up with the rest of the European financialmarket. The Wise Men Group was focusing “on the practicalarrangements for implementation of the Community rules”and not on substance.157 The group, chaired by the formerpresident of the European Monetary Institute (EMI) AlexandreLamfalussy, presented its final report on 15 February 2001,the so called Lamfalussy report.158 The main conclusion in thereport was that the securities market was in need of aninstitutional reform or what in this context might be called agovernance reform.

7.2 The Proposal in the Lamfalussy ReportIn the Lamfalussy report a number of proposals were made onhow to reform the securities market. The underlying problemwas that the regulatory framework was too rigid, too slow andoverall not very well adapted to the needs of the fast changingand developing securities market.159 The proposed remedy forthis was to introduce a four-level system for adoption, im-

72

157 See 2283rd meeting of the Council, supra note 156, p. 8.158 See Final Report of the Committee of Wise Men on the Regulation of

European Securities Market, Brussels, 15 February 2001. 159 See Final Report of the Committee of Wise Men, supra note 158,

pp. 13–14.

plementation, transposition, and monitoring of the legislation.The four-level system now implemented and in force, is basedon an extensive use of comitology and consultation withmarket practitioners and end-users. The basic idea of thesystem proposed by the Wise Men Group is the same as thatunderlying the White Paper; the legislators, the Council andthe European Parliament, should focus on the essentialelements of the legislation leaving the details and technicalmeasures needing to be implemented to the Commission. Thisis combined with an institutional reform and recommendationson compulsory consultations, i.e. again very similar ideas asthe ones put forward by the Commission itself in the WhitePaper.

At level one, the initiation phase, the Commission adopts aproposal for a directive or a regulation after a full consultationprocess. The proposal is thereafter sent to the European Parlia-ment and the Council who together adopt the legislativeact and reach agreement on framework principles and defini-tions of implementing powers according to the co-decisionprocedure.

At level two, the implementing phase, the Commission adoptsthe implementing measures decided at level one in coopera-tion with two committees, the European Securities Committee,ESC, and the Committee of European Securities Regulators,CESR (see below). The Commission first consults ESC andafter that requests advice from CESR on the implementingmeasures. CESR prepares the advice in consultation withmarket practitioners, end-users and consumers and submits itsadvice to the Commission. On the basis of the advice fromCESR the Commission then makes a proposal to ESC. TheCommission adopts the implementing measures after anapproving vote from ESC.

At level three, the transposition phase, CESR works to ensureconsistent implementation and application of EU legislation inall Member States, for example by adopting guidelines andcommon standards.

73

At level four, the monitoring phase, the Commission fulfils itsfunction as guardian of the treaty by checking compliancewith EU legislation in Member States and, if necessary, bylegal action if a breach is suspected.160

74

Table 4The Lamfalussy Four-level System

LEVEL 4 – Enforcement– The Commission checks compliance with EU legislation in all

Member States.

LEVEL 3 – Transposition– CESR adopts guidelines and standards in order to ensure consistent

implementation and application in all Member States.

LEVEL 2 – Implementation – The Commission requests advice from CESR after consulting ESC.

– CESR consults and gives advice on implementing measures to theCommission.

– The Commission adopts the implementing measures after anapproval from ESC.

LEVEL 1 – Initiation – The Commission adopts proposal for legislative act after consultation

process.

– Legislative act adopted by the Council and the European Parliament.

– The Council and The European Parliament agree on the scopeof delegation.

The Commission works in close co-operation with the twonew committees, ESC and CESR, and they have an importantrole in the new four-level system. Before an example is givenon how the system works it is therefore necessary to describethe committees in some greater detail.

160 See Final Report of the Committee of Wise Men, supra note 158, p. 6.

The European Securities Committee, ESC, was establishedby a Commission decision in June 2001.161 The decisionestablished ESC in its advisory capacity. According to Article2 of the decision “The role of the Committee shall be toadvise the Commission on policy issues as well as on draftlegislative proposals the Commission might adopt in the fieldof securities”. This means that the Committee shall advise theCommission in level one initiatives, during the initiationphase. In level two, the implementing phase, the Committeefunctions as a regulatory comitology committee. ESC is com-posed of representatives of the Member States and chaired bya representative of the Commission.162 As of February 2004the ESC has held 18 meetings. Summary records of all meet-ings are made available on the ESC website.163

The Committee of European Securities Regulators, CESR, wasalso established by a Commission decision in June 2001.164

CESR is an independent advisory group and its two main tasksare to:– advise the Commission on level two measures, and– coordinate national implementation on level three.165

CESR is composed “…of high-level representatives fromthe national public authorities competent in the field ofsecurities”.166 The Committee shall consult extensively at an

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161 See Commission Decision 2001/528/EC of 6 June 2001 establishing theEuropean Securities Committee (OJ 2001 L 191/45). In November 2003Article 2 of the Decision was amended by Commission Decision2004/8/EC of 5 November 2003 amending Decision 2001/528/ECestablishing the European Securities Committee (OJ 2004 L 3/33)extending the role of the Committee to advise the Commission not onlyin the field of securities but also on undertakings for collectiveinvestment in transferable securities (UCITS).

162 See Article 3 of Decision 2001/528/EC, supra note 161. 163 See http://

www.europa.eu.int/comm/internal_market/en/finances/mobil/esc_en.htm164 See Commission Decision 2001/527/EC of 6 June 2001 establishing the

Committee of European Securities Regulators (OJ 2001 L 191/43). 165 See http://www.cesr-eu.org.166 See Article 3 of Commission Decision 2001/527/EC, supra note 164.

early stage with market actors, consumers and end-usersbefore giving its advice to the Commission. CESR shall alsosubmit an annual report to the Commission. The Committeemeets at least four times a year and a member of the Commis-sion is entitled to participate in all meetings. CESR producesguidelines, recommendations and standards. The work isprepared by expert groups established on a non-permanentbasis.167 In the following a short description will be given ofhow the four-level system has worked when adopting andimplementing one of the directives in this field, the so calledmarket abuse directive.

7.3 The Market Abuse Directive7.3.1 Level One – Initiation and AdoptionThe market abuse directive was adopted by the Council andthe European Parliament in January 2003168 following aproposal from the Commission in May 2001.169 The proposalwas the result of extensive consultation procedures held in1999–2000, i.e. before the adoption of the minimum standardsfor consultations (see supra part 4.3.3) and before theimplementation of the Lamfalussy proposals.170 According toArticle 17 of the Market Abuse Directive the Commission,assisted by the European Securities Committee, shall adoptimplementing measures according to the regulatory committee

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167 See Articles 5 and 6 of Commission Decision 2001/527/EC, supra note164; and CESR’s website http://www.cesr-eu.org.

168 See European Parliament and Council Directive 2003/6/EC of 28January 2003 on insider dealing and market manipulation (market abuse)(OJ 2003 L 96/16).

169 See Proposal for a Directive of the European Parliament and of theCouncil on insider dealing and market manipulation (market abuse),COM (2001) 281 final.

170 See the Commission’s website on market abusehttp://www.europa.eu.int/comm/internal_market/en/finances/mobil/market-abuse_en.htm.

procedure provided that the measures do not modify theessential provisions of the Directive.171

7.3.2 Level Two – ImplementationAccording to the four-level system the Commission shall askfor technical advice from CESR before adopting implementingmeasures. The Commission sent its first request for technicaladvice on implementing measures to CESR in March 2002.This request was based on an agreement between DG InternalMarket and ESC on 5 December 2001. In order to meet thedeadline of an integrated market by the end of 2003, theCommission and ESC considered it to be important that CESRshould start the work immediately, i.e. even before the finaladoption of the Directive in question.172

CESR established one internal expert group on market abuse.This group has published 14 papers on market abuse andrecommendations on how to regulate market abuse. The firstpaper was published in September 2000 and the last onein September 2003.173 Since CESR is an independent body theCommission guidelines and recommendations do not apply toCESR. To meet the recommendations for openness andtransparency recommended in the Lamfalussy report, CESRhas adopted its own standards for consultations practices.174

The consultation practice applies to all work carried out byCESR (including the ad hoc expert groups). CESR shall con-sult interested parties (including market practitioners, con-sumers and end-users), make consultation proposals widelyknown, in particular by using the Internet and finally consult

77

171 In Articles 1, 6, 8, 14 and 16 of the market abuse directive there is areference to Article 17 and the Commission shall accordingly adopt thenecessary implementing measures in accordance with these articles.

172 See Provisional Request for Technical Advice on Possible ImplementingMeasures on the Future Directive on Insider Dealing and MarketManipulation (Market Abuse), Brussels, 18 March 2002.

173 See http://www.cesr-eu.org.174 See Public Statement of Consultation Practices, December 2001,

CESR/01-007c.

at all levels; national, European and international according tothe consultation practice. Furthermore, the Committee shallpublish an annual work programme in order to let interestedparties know when to expect output from the Committee. TheCommittee shall also publish mandates given by theCommission, organise informal discussions at an early stageupon request and consult at a sufficiently early stage in thedecision-making process. When CESR consults it will aim atreleasing its thinking at various stages, produce reasonedconsultative proposals, establish working consultative groupsof experts and use face to face meetings if necessary for anyparticular target group. The responses to the consultations aremade public and the Committee publishes reasoned explana-tions addressing all major points raised, consults for a secondtime if it seems necessary and publish all formal proposalsand advice given under level two.175

When CESR received the request for advice from the Com-mission, a call for evidence was requested.176 CESR receivedaround ten submissions from trade associations representingbanks, issuers and investment firms, as well as a number ofsubmissions from individual organisations. On the basis of thefirst set of evidence received CESR started to work on aconsultation document. Furthermore, CESR established aConsultative Working Group which held three meetings withthe expert group on market abuse and gave advice on thedrafting of the consultative document. In its consultation paperCESR set out its proposed advice to the Commission. Theconsultation was launched on 1 July 2002 and closed on 30September 2002. Moreover, a number of open meetings andbilateral meetings were held in order to receive input onspecific aspects of the proposal. CESR received over 100

78

175 It should be noted that the consultation practice adopted by theCommittee is a guideline that the Committee should try to follow but ifit is not possible to follow the practice CESR shall publish its reasonsfor that. See Public Statement of Consultation Practices, supra note 174.

176 The first paper was published on 27 March 2002 and the deadline forthe contributions was set at 26 April 2002.

responses, all of which were made public on CESR’s website.The responses received were sorted under ten headings, forexample banking, investment services, issuers, legalprofessions, government, regulatory and enforcement. On thebasis of the responses received the expert group redrafted theconsultation paper in October and November. An open meet-ing was held with market participants in order to discuss themodifications made to the paper. The participants at the meet-ing were able to give more written contributions to CESR. InDecember 2002 the final Advice on Level 2 ImplementingMeasures for the proposed Market Abuse Directive waspublished.177

7.3.3 The Commission Adopts a First Setof Implementing Measures

In March 2003 the Commission published three workingdocuments on the basis of the recommendations given byCESR on implementing measures. The public was invited togive comments on the technical drafting of the implementingproposals. All comments were made public on the Internet andthe Commission started drafting its formal proposal in the endof April. The Commission received 23 comments from thepublic on the first draft and one comment from the EuropeanParliament’s Committee on Economic and Monetary Affairs.178

In July 2003 the Commission adopted the formal draft onimplementing measures that was submitted to the EuropeanSecurities Committee for a vote.179 ESC received two revised

79

177 See, in general, http://www.cesr-eu.org. See also Possible ImplementingMeasure on Market Abuse request for Advice and Call for Evidence,27 March 2002, CESR/02-047; Results of CESR’s public consultationonpossible measures of the future Market Abuse Directive, 13 November2002, CESR/02-226c; and CESR’s Advice on Level 2 ImplementingMeasures for the proposed Market Abuse Directive, December 2002,CESR/02-089d.

178 See http://www.europa.eu.int/comm/internal_market/en/finances/mobil/marketabuse/2003-05-consult-contrib_en.htm.

179 See the ESC website,http://europa.eu.int/comm/internal_market/en/finances/mobil/esc_en.htm.

versions of the document from the Commission until itreached majority and approved the Commission’s final versionof implementing measures on 29 October 2003. DG InternalMarket could then start to work on the first implementingmeasures in November 2003. DG Internal Market publishedan informal working paper in order to receive some morecomments on the technical drafting. In December 2005 thefirst implementing measures were adopted by the Commissionin the form of two Commission Directives and one Commis-sion Regulation.180

Parallel to this, the Commission started working on a secondset of implementing measures in November 2003. It should benoted that there is no need to consult CESR again but theESC has to vote on both measures. A working document waspublished in November and comments were made public inJanuary 2004. Following the 19 responses to the second setthe Commission published a formal draft on 27 January 2004.In February 2004 a revised version was published followingthe comments from the European Securities Committee.181

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180 See Commission Directive 2003/124/EC of 22 December 2003implementing Directive 2003/6/EC of the European Parliament and ofthe Council as regards the definition and public disclosure of insideinformation and the definition of market manipulation; CommissionDirective 2003/125/EC of 22 December 2003 implementing Directive2003/6/EC of the European Parliament and of the Council as regardsthe fair presentation of investment recommendations and the disclosureof conflicts of interest; and Commission Regulation (EC) 2273/2003 of22 December 2003 implementing Directive 2003/6/EC of the EuropeanParliament and of the Council as regards exemptions for buy-backprogrammes and stabilisation of financial instruments.

181 See comments from the public on http://www.europa.eu.int/comm/internal_market/en/finances/mobil/marketabuse/2004-01-consult-contrib_en.htm. See also Formal Commission draft onsecond set of measures implementing the European Parliament andCouncil Directive 2003/6/EC on insider dealing and marketmanipulation, submitted to the European Securities Committee, ESCdocument Nr. 48/2003. In April 2004 the Commission adopted thesecond implementing measure, see Commission Directive 2004/72/EC of

7.3.4 Level Three – Transposition At level three, the transposition phase, CESR shall workto ensure consistent application of the legislation in allMember States. In April 2004 CESR published a consultationdocument on the role of CESR on level three under theLamfalussy process. On 11 May 2004 an open hearing washeld and the consultation was open until 1 June 2004. Theconsultation paper aims at presenting the views on howCESR should organise its work at level three. Regarding theMarket Abuse Directive CESR has, so far, discussed potentialproblems with the Review Panel and established guidance onthe definition of “accepted market practices” under theDirective.182

7.3.5 ConclusionThe Commission presented its proposal for the Market AbuseDirective in May 2001 and the directive was adopted inJanuary 2003, the first set of implementing measures wereadopted by the Commission one year later, in December 2003and parallel to this the Commission has started drafting thesecond set of implementing measures. This process, fromadoption of the proposal to the implementing of the Directivehas taken approximately two and a half years. This is arelatively short period of time for legislation under co-decision.183 During this time several consultations were held indifferent forms and at different stages in the process. One ofthe most important proposals in the Lamfalussy-report was theone on consultation. According to the report, the consultations

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29 April 2004 implementing Directive 2003/6/EC of the EuropeanParliament and of the Council as regards accepted market practices,the definition of inside information in relation to derivatives oncommodities, the drawing up of lists of insiders, the notification ofmanagers' transactions and the notification of suspicious transactions.

182 See The Role of CESR at “level 3” under the Lamfalussy process,CESR/04-104b.

183 According to the Lamfalussy report the average time for the adoption oflegislation under co-decision is over two years. See Final Report of theCommittee of Wise Men, supra note 158, pp. 13–14.

need to be a process, a dialogue and furthermore, transparencyis essential for the system to function properly. As has beenshowed by the above example, the consultations conductedafter the adoption of the Market Abuse directive on level twoimplementing measures seem to fulfil these requirements.CESR and the Commission have consulted interested partiesat different times in the process and all relevant documentshave been made available on the Internet. So far, theLamfalussy-structure seems to be an improvement of thesystem. It remains to be seen what will happen on level three(the implementing phase) and level four (the transpositionphase); it is still too early to tell how it will work. Someconcerns remain; first, the framework directives adopted arestill very detailed in some areas although the idea is that thelegislators should only deal with the essential elements;second, concerns has been raised that staffing is inadequateboth in the Commission and in CESR for dealing with theseextensive consultation procedures. Consultations are verytime-consuming and this is true also for the counter-parts inthe consultation process, i.e. banks, investment firms andprivate actors, the ones being consulted.184

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184Speech by Baron Alexandre Lamfalussy, Seminar on The Integrationof Financial Markets in Europe, Stockholm, 21 April 2004.

8 REACTIONS TO THE COMMISSION’SAGENDA FOR REFORM OF EUROPEANGOVERNANCE

8.1 Introduction When Prodi announced that the Commission would launch aWhite Paper on Governance, expectations from other EUinstitutions and civil society on the final result were very high.But many were disappointed when the White Paper was finallydelivered. A member of the European Parliament is reported tohave said on the occasion of the presentation of the Com-mission’s White Paper on Governance, that, given the result, heregretted that trees had had to die to produce it.185 Neither didthe political scientist Fritz W. Scharpf spare his words whencriticising it by comparing the aspirations made by theCommission to the creation of a benevolent dictatorship.186

Another scholar, Deidre Curtain, criticised the Commission fornot delivering a general vision of public administration andgovernance and called the White Paper a missed opportunityfor the Commission and for the European Union.187 Althoughthese words may seem too harsh, it is true that the WhitePaper itself left much to be desired, especially with regard toits presentation. Although one of the main goals of the WhitePaper was to bring the citizens closer to Europe, it was written

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185 See Steinberg, P., Agencies, Co-Regulation and Comitology- and Whatabout Politics? A Critical Appraisal of the Commission’s White Paper onGovernance, Working Paper No. 6/01, Symposium: Mountain orMolehill? A Critical Appraisal of the Commission White Paper onGovernance 2001, available atwww.jeanmonnetprogram.org/papers/papers01.html, p. 1.

186 See Scharpf, W. F., European Governance: Common Concerns vs. TheChallenge of Diversity, Working Paper No. 6/01, supra note 185. For ageneral comment on the White Paper and the follow-up, see Sundberg,H. and Bengotxea, J., The Other Constitution – the Commission’s WhitePaper on New Governance, Europarättslig tidskrift 2004 pp. 139–163.

187 See Curtin, D., The Commission as Sorcerer’s Apprentice? Reflections onEU Policy Administration and the role of Information Technology inHolding Bureaucracy Accountable, Working Paper No. 6/01,supra note 185.

in a “bureaucratic” language. It is probably hard for a personnot accustomed to following these questions to understand thepractical implications of the ideas launched in the White Paperonly by reading the document.

But the White Paper has also been positively received,especially as a starting point for a process of discussion.Indeed, the Commission has so far followed up most of therecommendations and proposals made in the White Paper in anumber of subsequent documents. Some of the reactions fromMember States’ governments, the European Parliament, theEuropean advisory bodies and the academia on the action thatthe Commission has taken in this respect will be accountedfor in the following.

8.2 Consultation of the Civil Society Many would agree that the Commission’s reform, to structurethe consultation process and include more players into thecircles of decision making, should be very positively received.But some academics have pointed at the danger that onlyactive actors, i.e. those already now participating as organised,financially and conceptually powerful lobbying groups, will inreality be included in the process. Therefore, despite the Com-mission’s affirmations to link Europe better with the citizens,those interests that are not privileged as “actors” and “players”could be excluded from the process. Formalising consultationprocedures might also be less effective for some parties in-volved that have already had strong and well functioninginformal connections with the Commission.188

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188 See Weiler, J. H. H., The Commission as Euro-Skeptic: A Task orientedCommission for a Project-Based Union, A Comment on the First versionof the White Paper, Working Paper No. 6/01, supra note 185, pp. 2, 6–7;and Kohler-Koch, B., Organized Interests in European Integration: TheEvolution of a New Type of Governance? in Wallace, H. and Young,A. R. (eds.), Participation and Policy-Making in the European Union,(Clarendon Press 1997), p. 47.

The reactions of the governments of the Member States vary.Some of the governments have been anxious to underline thatconsultation at EU level should only supplement and neverreplace consultation at national level. Other governments, forexample the UK and the Swedish governments, have stressedtheir support for a common standard for EU consultation.189

The UK Government especially welcomed the Commission’sintroduction of a consistent approach to the conduct of con-sultations through the minimum standards. In its view, itshould apply to all proposals. It would also welcome a greaterclarity in the selection of participants.190 In the Swedishgovernment’s view, the minimum standards should have beenregulated by binding legal rules. Moreover, it urged theCommission not to discriminate against interested groups atnational level in favour of parties that are organised atEuropean level.191

Another argument brought forward in the reactions to theminimum standards of consultation is the need to draw adistinction between consulting civil society and consultingregional and local government. The Committee of the Regionshas, for example, underlined that the democratic legitimacy ofrepresentatives elected by direct universal suffrage must not beconfused with the greater involvement of NGOs and other

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189 See Swedish comments on the White Paper on European Governance,Ministry for Foreign Affairs, 22 March 2002, available atwww.europa.eu.int/comm/governance/contributions/index_en.htm, p. 1.The UK response to the Commission’s White Paper on Governance,available at www.europa.eu.int/comm/governance/contributions/index_en.htm, pp. 1-4.

190 See The UK response to the Commission’s Package of Communicationson Better Regulation, July 2002, available at http://europa.eu.int/comm/secretariat_general/sgc/consultation/docs/cont_uk_gov.pdf.

191 See Swedish comments on the White Paper on European Governance,Ministry for Foreign Affairs, 30 July 2002, available at http://europa.eu.int/comm/secretariat_general/sgc/consultation/docs/contrib_su_gov.pdf.

arrangements for the representation of individual interestswithin society. The German government has also held that aclear distinction should be made between civil society on theone hand and regions and municipalities on the other. In itsview, interest groups should not be involved in decisionsor given responsibility for implementation since they haveno democratic electoral mandate and are not subject toparliamentary supervision.192

The European Parliament reacted quite strongly to theCommission’s initiative in reforming its consultation processeswith civil society.193 Although it welcomed the Commission’sproposals for minimum standards for consultation, it did so inconnection with emphasizing its unique role in possessingdemocratic legitimacy in the EU decision-making process. Atan earlier stage, it also criticised some of the Commission’soriginal ideas, such as setting up groups of experts anddelegating tasks to them. The European Parliament was inparticular not fond of the Commission’s proposal to introduceaccredited organisations or organisations with partnershipagreements, holding that this would only add a further level ofbureaucracy in the process. In its view, bodies independentfrom the Commission such as the Economic and SocialCommittee would be better suited to carry out such tasks. Asdescribed above (see supra part 4.3), the Commission alsoomitted that issue from its follow-up proposals. Furthermore,the European Parliament has several times stated that con-

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192 See Germany’s opinion on the European Commission’s White Paper onEuropean Governance, 12 December 2001, available atwww.europa.eu.int/comm/governance/contributions/index_en.htm, p. 2;Swedish comments on the White Paper on European Governance, supranote 189, p. 1; and The UK response to the Commission’s White Paperon Governance, supra note 189, pp. 1–4.

193 See Bouwen, P., Competing for Consultation: Inter-OrganizationalConflict between the Commission and the Parliament, Discussion Paperpublished by the Robert Schuman Center for Advanced Studies andSieps (May 2004).

sultation of interested parties can only supplement and neverreplace the procedures and decisions of legislative bodies.194

In its opinion on the White Paper the Economic and SocialCommittee also criticised certain aspects of the Commission’sapproach in involving the civil society in the decision-makingprocess. In its view, it is important to make a clear distinctionbetween “civil dialogue” and “social dialogue”. In that respect,it had produced a set of eligibility criteria for the so called“civil dialogue” that should, for example, be applied in orderto weight the opinions expressed in on-line consultations.195

However, as described above, the Commission did not want tofocus on the issue of representativeness at European level asthe only criterion when assessing the relevance or quality ofcomments.

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194According to the European Parliament, the improvement in the bondbetween citizens and the EU institutions should primarily be achieved byincreasing the European Parliament’s legislative powers. It stresses thatgovernance is a task for all the European institutions and not only theCommission, and therefore underlines that inter-institutional cooperationin this field is very important. See the European Parliament Resolutionof 29 November 2001 on the Commission White Paper on EuropeanGovernance, A5-0399/2001, at 11 b; and European Parliament Resolu-tion of 4 December 2003 on European Governance, A5-0402/2003, pp.2, 9–10, 12–13 and 17. The European Parliament was also positive to theCommission’s minimum standards on the use of experts. However, it didexpress a decided preference for parliamentary democracy over ademocracy of experts and urged the Commission to publish the evidenceand the way in which expert advice is used in the legislative process.The European Parliament was also critical of the fact that there was stillno clear list showing which committees and working groups the Com-mission has consulted. See further European Parliament Resolution of4 December 2003 on European Governance, A5-0402/2003, pp. 18–20.

195 See Opinion of the Economic and Social Committee on EuropeanGovernance-a White Paper, Brussels 20 March 2002, CES 357/2002EN/o.

8.3 Involvement of Regional and LocalGovernment in Decision-making

In the debate on the future of the European Union theEuropean Parliament has considered the role of regional andlocal authorities to be a very important issue, especially asthese authorities have taken on a more important role intransposing Community legislation and in running Communityprogrammes. In its resolution on the role of regional and localauthorities in European integration adopted in January 2003,the European Parliament confirmed its support for the con-cept set out in the White Paper which sees the regions andmunicipalities acting as intermediaries between the individualand the European institutions. In the European Parliament’sview, consultation should in principal take place via the Com-mittee of the Regions (CoR) or via the most representativeEuropean associations. Additionally, new methods of participa-tion should be used, acknowledging the key role to be playedby regional and local bodies. The regions should, for example,enjoy the same flexibility as regards the choice of methods asthe national authorities where transposition of directives intonational law falls within their competence. However, in itsreport on the White Paper adopted earlier, the European Parlia-ment stated that there is no question of the direct delegation ofpowers and tasks to bodies or authorities at regional or locallevel in the Member States since it may undermine the basicstructure of the Union and be in breach of the principles ofsubsidiarity and proportionality.196

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196 It also underlined that the European Parliament’s legislative powers mustbe strengthened in order to enhance communication between citizens andthe institutions of the Union. Furthermore the European Parliamentsupported the CoR aspirations and hoped that a new constitutional treatywould give it the right to bring a matter before the Court of Justice insome events. The European Parliament also wanted to make it possiblefor regions and other territorial entities to defend their rights before theCourt under the authority of the Member State concerned. See EuropeanParliament Resolution of 14 January 2003 on the role of the regional andlocal authorities in the European integration, P5_TA 0009/2003,pp. 2, 5, 8 and 10; European Parliament Resolution, A5-0399/2001,supra note 194, pp. 9 and 25.

The European Parliament has also welcomed the submissionof the Commission proposals on introducing tripartite con-tracts and agreements on a trial basis. In its resolution on thissubject it urged the Commission to press ahead with its pilotprogramme with a sense of urgency. The European Parliamentalso called on the Commission to ensure that adequatefinancial means are made available to ensure that there is fulland fair opportunity for interested territorial authorities toparticipate. However, the European Parliament thinks thatrecourse to tripartite contracts or agreements should only befacilitated for genuinely unusual cases and be restricted tomatters concerning improved implementation of Communitylaw.197

The Commission’s idea of introducing tripartite contractsreceived various reactions from the Member States govern-ments. Whereas the British government wanted more detailedinformation on the purpose and the Dutch government thoughtthat it was very useful to investigate further, the Swedish andGerman governments were more reluctant. The Swedishgovernment feared that the proposal could increase bureau-cracy and envisaged problems regarding controlling andsanctioning of such contracts. The German governmentstrongly opposed a regional development policy at Communitylevel as proposed in the White Paper. It stressed that it was atask for the Member States and the regions. In accordance, itstated that introducing target-based tripartite contracts wouldconstitute an unacceptable encroachment on the MemberStates’ executive powers. Germany hoped that the Commissionshould see the CoR as more of a political partner and propose

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197 See European Parliament Resolution, P5_TA 0009/2003, supra note 196,p. 6; and European Parliament Resolution of 4 December 2003 onCommission Communication entitled “A framework for target-basedtripartite contracts and agreements between the Community, the Statesand regional and local authorities”, P5_TA-PROV 0550/2003, pp. 1, 3, 6,9 and 12.

ways in which the Committee’s initiatives and proposals couldbe looked at more closely in the future.198

The CoR has adopted two opinions with regard to the Com-mission’s White Paper and its follow-up. In the first one fromMarch 2002, it welcomed the Commission’s intention tostrengthen the involvement of local and regional players in thedecision-making process. It saw the introduction of tripartitecontracts as an effective instrument for involving regional andlocal authorities, opening the way for them to contribute theirexperience and know-how. It also welcomed the developmentof its consultative role as advocated in the White Paper. But itcriticised the White Paper for not entailing the procedures forimplementing the principles set out therein.199 Another sugges-tion it made concerned the EU directives. In its view, theyshould be general in scope so that local and regionalauthorities could decide on the practical arrangements forapplying EU legislation. The CoR also wished to be involvedin the development of mechanisms for consultation upstreamof decision-making and in the implementation of co-regulationinstruments but stressed that co-regulation never should beextended to areas in which legislation is required.200

In the second Opinion from July 2003, the CoR welcomed theCommission’s efforts to standardise procedures for consultingwith organised civil society. However, it proposed that localand regional government should be able to put forward theirviews not only on the Commission’s work programme but also

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198 See Germany’s opinion on the Commission’s White Paper,supra note 192, pp. 1–2.

199 For example, it found the idea on general use of partnership as a methodof governance for policies with territorial impact very important.So far, the Commission has not followed up that idea, see supra part 4.6.

200 See Opinion of the Committee of the Regions of 13 March 2002 on theWhite Paper on governance and the Communication on a new frame-work for cooperation on activities concerning the information andcommunication policy of the European Union, pp. 1.8, 1.9, 1.10, 2.9, 5.5and 5.8.

on concrete legislative proposals. The CoR was also verysatisfied that the Commission wanted it to be responsible fordeveloping the regional dialogue. But it underlined that theinvolvement of local and regional authorities must be two-fold: on the one hand, systematic consultation of and monitor-ing by local and regional authorities in the pre-legislativestage, and on the other hand, a strengthened role for the CoRin the political decision-making process. Now that the Com-munication on a dialogue with associations of regional andlocal authorities is adopted it is possible to see in what respectthe Commission has taken these views into consideration. TheCoR may be disappointed at the Commission for not letting itbe responsible for organising the dialogue. On the other hand,the Commission has proposed that a systematic dialogue willbe instituted based on the presentation of the major policyinitiatives that have a direct or indirect territorial impact. TheCoR will also play an important role in selecting theassociations that may participate. (see supra part 4.6).201

Regional associations have reacted to the Commission’s workon systematising the dialogue with regional and localauthorities.202 Many have emphasised the importance of in-volving both European as well as national associationsrepresenting local and regional governments. They have alsostressed that the selection criteria to identify the associations,which will be invited to participate in the dialogue, should beclear, transparent and the result of consultation between theCommission, the CoR and the associations through the settingup of a joint working group. Furthermore, the Commissionshould provide feedback on how the dialogue with the re-

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201 See Opinion delivered by the Committee of the Regions on 2 July 2003concerning the follow-up to the Commission’s White Paper on EuropeanGovernance, pp. 8, 12, 16 and 17.

202 All reactions to the staff Working Paper on the ongoing and systematicpolicy dialogue with local-government associations, adopted in March2003, supra note 99, can be found onhttp://europa.eu.int/comm/regional_policy/consultation/territorial_en.htm.

presentatives of local and regional actors has been taken intoconsideration.203

8.4 The Commission’s View on ReformingComitology

The Commission’s view on reforming comitology has receivedstrong criticism in the academic responses to the White Paper.Many have held that the essence of the White Paper lies in itsproposal to limit the involvement of the Council and theEuropean Parliament to the definition of “essential elements”,leaving the Commission to fill in the technical details viaimplementing “secondary rules” without being bothered bycomitology procedures. The Commission has been callednaïve for thinking that it can have all executive responsibilitydelegated and still continue to be ideologically and politicallyneutral. Such functional approach fails to acknowledge thatthe exercise of executive power is not always non-political andtechnocratic based on efficiency considerations. In fact, manypolicy choices below the level of “essential principles” mayhave high political salience. Although many see weaknesses inthe comitology system they wonder whether the Commissionis reasonable in putting the system into question. Compared tothe proposals in the White Paper, comitology has theadvantage that it structures regulatory policy pluralisticallyeven in its “implementing stage”. Also, the comitology systemallows for sensitivity towards social and cultural differencesand ensures that national bureaucracies are confronted withthe concerns, experiences and positions of their neighbouring

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203 See AEBR, CEMR, CPMR and EUROCITIES, joint response to theCommission working paper “Ongoing and systematic policy dialoguewith local-government associations”, available athttp://europa.eu.int/comm/regional_policy/consultation/territorial/reponse_jointe__observations_en.pdf; and Svenska Kommunförbundet ochLandstingsförbundet, Synpunkter på Kommissionens arbetsdokument,”En kontinuerlig och systematisk dialog med sammanslutningar avregionala och lokala myndigheter i utformningen av politiken”, availableat http://europa.eu.int/comm/regional_policy/consultation/territorial/svenska_kommunforbundet.pdf.

states and does not completely rule out diversity in regulatorypolicy. The idea to essentially replace consensus-seeking pro-cedures with the unilateral powers of the Commission hastherefore been criticised for lacking of legitimacy by notleaving room for Member States to intervene when needed.This is the reason why many academics conclude that awholesale delegation of legislative competencies to the Com-mission should not be made, at least not before the directresponsibility of the European Parliament for substantivepolicy choices or the political accountability of the Commis-sion are strengthened.204

Reforming the comitology system has always been a verysensitive issue for the Member State’s governments. Althoughdecision-making could be done more effectively without theuse of restrictive committees, the Member States do not wantto let go of their control of delegated legislation, especially insensitive areas and areas not subject to co-decision.205 Still,some governments have acknowledged the fact that the systemneeds to be reformed.206 The UK British Minister for Europe,Mr Denis MacShane, has indicated that that there was a needto reform the present system of comitology. At the same time,he has stressed that the flexibility of the three existingprocedures has worked well hitherto and that certain measureswould always need to be adopted under the regulatory pro-cedure. Furthermore, the UK has expressed concern about thefact that the advisory procedure assumes greater importanceunder the Commission proposal (see supra part 5.2.2) as

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204 See Weiler, supra note 188, pp. 2 and 4–6; Scharpf, supra note 186,pp.1–2, 5–7 and 12; Joerges, C., Economic order – technical realization– the hour of the executive: some legal historical observations on theCommission White Paper on European Governance, Working Paper No.6/01, supra note 185, pp. 14–15 and 17; and Joerges, C., Guest Editorial:The Commission’s White Paper on Governance in the EU – A Symptomof Crisis? Common Market Law Review, vol 39, 2002, p. 444.

205 See Bergström, C.F., supra note 32.206 See The Danish Government’s comment to the European Commission

on the White Paper on European Governance, available athttp://www.europa.eu.int/comm/governance/contributions/index_en.htm.

it does not accord the Member States the same degree ofinfluence as under the other existing procedures.207

The European Parliament has a much more positive view onthe Commission’s comitology reform.208 This is understand-able. For many years, the European Parliament has criticisedthe fact that Article 202 in the EC Treaty only allows theCouncil to supervise the Commission when exercising itsdelegating powers, even if the European Parliament is a co-legislator. In the so-called Bourlanges report, presented to theEuropean Convention on the Future of EU, the EuropeanParliament expressed its vision with regard to how delegationof legislative acts should be made and supervised in a futureconstitution.209 The Commission’s first proposal to amend thecurrent comitology decision takes up the formula set in thatreport by making it possible for the European Parliament toobject to an implementing measure. The proposal also bringsin a distinction accepted by the European Parliament inthe report between delegated legislation and measures thatonly have an individual scope or concern procedural or

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207 The adoption of time-sensitive, health and safety-type measures in theveterinary and phyto-sanitary field, as well as implementing measures inareas not subject to co-decision, should continue to be subject to theexisting regulatory procedure. See House of Commons Thirty-seventhReport, supra note 117, p. 17, Mr Denis MacShane, British Minister forEurope.

208 See European Parliament Resolution, A5-0399/2001, supra note 194,pp. 34–36, 40 and 42; and European Parliament Report of 3 December2002 on the typology of acts and the hierarchy of legislation in theEuropean Union, 2002/2140 (INI), A5 0425/2002 final. See alsoBergström, C.F. and Rotkirch, M., Sieps 2003:8, supra note 120.

209 In the so called Bourlanges Resolution, the European Parliamentexpressed its vision with regard to how delegation of legislative actsshould be made and supervised in a future constitution. Foremost, it hasargued that it is unjust since only a committee of national officials andnot the European Parliament has a right to control delegated acts and to“call them back” and a blocked decision is referred back to the Councilalone with no parliamentary involvement. It has also criticised the wholesystem for being complex and lacking of transparency, see EuropeanParliament Report, A5 0425/2002, supra note 208.

administrative arrangements subject to advisory committees.However, the European Parliament demanded some amend-ments to be made before giving the Commission the “greenlight”.210

According to the regulatory committee procedure, as it wasset out in the initial proposal, if the European Parliament orthe Council expressed any objections to the draft measure theCommission must;

1) withdraw its draft and present an ordinary proposal forlegislation under the co-decision procedure, or

2) adopt the draft measure, possibly amending it taking theobjections into account.

The European Parliament presented 17 amendments to theinitial proposal in which, inter alia, the word “possibly” wasdeleted from the second option and, additionally, a thirdoption was inserted which stated that the Commission couldalso chose to withdraw its draft altogether. The amendmentswere adopted by the European Parliament on 13 May 2003but, “in the light of the Commission’s position on theamendments”, the rapporteur, Richard Corbett, asked for thereport to be referred back to the Committee on ConstitutionalAffairs. Following “intense talks” between the rapporteurand the Commission a second report was presented on 11 July2003. This time the European Parliament requestedamendments to the end that the Commission should alwaystake account of the positions of the European Parliament andthe Council. Moreover, the Parliament suggested that thesecond option should be changed to;

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210 In this respect, the European Parliament reached a compromise andalready approved a series of amendments in May 2003. However, theCommission stated that it disagreed with some amendments, and theEuropean Parliament therefore referred the matter back to theConstitutional Committee in order to allow the rapporteur the possibilityto enter into talks with the Commission. A compromise was finallyagreed upon and the European Parliament adopted its report inSeptember 2003.

2a) adopt the draft accompanied by an appropriate statement,or

2b) modify it.211

The Commission was only prepared to adjust its proposalpartially to the Parliament’s amendments. According to theamended proposal of 22 April 2004 it accepted the obligationto always take account of the positions of the EuropeanParliament and the Council and the first and third option wasalso left unchanged. Regarding the second option, apparentlythe most controversial one, the demand stating that the draftshould be “accompanied by an appropriate statement” wasdeleted. Instead the Commission inserted a sentence statingthat “[t]he Commission shall inform the legislator of theaction it intends to take on the latter’s objections and of itsreasons for doing so.” Perhaps more importantly, theCommission changed the wording of the text; where itpreviously stated that the Commission must chose one of thefollowing options, the amended proposal states that theCommission may chose one of the following options. Thesignificance of this is difficult to estimate. The amendedproposal was transmitted to the Council and the EuropeanParliament in April 2004 (see supra part 5.2.2)..212

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211 The European Parliament also underlined that the new comitologydecision should be without prejudice to any undertakings made by theCommission in the field of the securities legislation in order to makesure that the Lamfalussy process, based on a particularly wide use ofcomitology, should continue to apply. See European Parliament SecondReport of 11 July 2003 on the proposal for a Council decision onamending Decision 1999/468/EC laying down the procedures for theexercise of implementing powers conferred on the Commission,A5-0266/2003 final; and European Parliament legislative Resolution of2 September 2003 on the proposal for a Council decision on amendingDecision 1999/468/EC laying down the procedures for the exercise ofimplementing powers conferred on the Commission, P5_TA-PROV0352/2003.

212 See COM (2004) 324, supra note 115.

8.5 The Operating Framework forRegulatory Agencies

The Commission’s proposal to introduce regulatory agenciesis also a subject that has received strong reactions. TheSwedish government, for example, stated in its comment onthe White Paper on Governance that it had reservations con-cerning increasing the number of European agencies withdecision-making powers unless there is a clear and addedvalue. It also held that such agencies would risk makingthe division of roles between agencies and national publicauthorities unclear and could undermine the power andresponsibilities of national public authorities. The Germangovernment underlined that powers may only be granted to anagency in instances where purely technical decisions withoutany political ratifications are concerned. Other governments,such as the Netherlands, on the other hand supported the ideaof establishing new European agencies empowered to makeindividual decisions.213 The Committee of the Regionsrecognised the value of using European regulatory agencies totake over some of the executive tasks of the Union but under-lined that it must only take place in clearly defined areas. Italso pointed to the need for an effective surveillance andcontrol system of such agencies.214

The European Parliament in its report on the White Paper firstexpressed a restrictive approach to the idea of creating furtherindependent agencies, holding that such agencies could onlybe approved if specific scientific or technical expertise wererequired and must not lead to any watering down of theCommission’s political accountability. It clearly stated that itsrights of co-decision and political supervision would become

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213 See Swedish comments on the White Paper on European Governance,supra note 189, pp. 3 and 6-7; Germany’s opinion on the Commission’sWhite Paper, supra note 192, pp. 3-4; and The Netherlands’ response tothe White Paper on European Governance, available athttp://www.europa.eu.int/comm/governance/contributions/index_en.htm,pp. 14 and 23.

214 See CoR Opinion of 2 July 2003, supra note 201, p. 27.

more difficult if decision-making powers were increasinglydelegated to decentralized agencies.215 But it welcomed theCommission’s communication in its Report on the operatingframework for European regulatory agencies. It noted withsatisfaction that the Commission’s communication has dulytaken into account its views. It was, for example, glad that theCommission had explicitly stated that the creation of agenciesshould be decided by the legislator on a case-by case basisaccording to the normal legislative procedure (co-decision)and not in general based on Article 308 of the EC Treaty. TheEuropean Parliament especially supported the Commission’sefforts aimed at arriving at a limited number of models andagreed that a distinction should be drawn between decision-making agencies and executive agencies with no power toenact legal instruments binding on third parties.216

On a more critical note, the European Parliament disagreedwith the Commission’s intention to only have an ex-antecontrol function. Opposed to the Commission, the EuropeanParliament considers it important that all the Communityinstitutions play a part in this respect.217 The term regulatorywas also criticised. According to the European Parliament, theterm should be avoided in order to rule out any misunder-standings since these agencies, described in the communica-

98

215 See European Parliament Resolution, A5-0399/2001, supra note 194,pp. 16–18. In its proposal on a hierarchy of legal norms presented tothe Convention, the European Parliament suggested that the legislativeauthority could confer implementing responsibility on a specialistagency or self-regulating body on the condition that this delegationcould be withdrawn by the Council, the European Parliament or theCommission, see European Parliament Resolution of 29 January 2003on the typology of acts and the hierarchy of legislation in the EuropeanUnion, CONV 517/03.

216 See European Parliament Report of 4 December 2003 on CommissionCommunication on “The operating framework for the Europeanregulatory agencies”, A5-0471/2003, pp. 1–3 and 15.

217 It also wished to be involved in selecting the agency’s director and tohave a say in the selection of the administrative board.

tion, may not be empowered to adopt legislative measuresof general application. Instead the Commission could look atthe independence of an agency’s technical judgements whenclassifying them. The European Parliament also wonderedwhy the Commission did not say anything about the fate ofthe existing agencies and demanded an urgent review of them,particularly as regards the extent to which their activitiesare worthwhile. It urged the Commission to start consideringwhether the differences between agencies based on the ECTreaty and those based on the EU Treaty are still justified.Furthermore, it also called on the Commission to clarifywhich legal instrument the Commission intends to use for thisframework. Finally, the European Parliament underlined theimportance that scrutiny of the legality of the agency’s legalacts is dealt with clearly and comprehensibly in the instrumentestablishing that agency.218

On 28 June 2004, the Council adopted the operating frame-work for European Regulatory Agencies. In its conclusions itnoted that such a framework, being a legally binding instru-ment, should take due account of the need to ensure demo-cratic control and respect for the principles of subsidiarity andproportionality. It called on the Commission, in its proposalfor a framework, to provide a clear definition of regulatoryagencies according to their competences and tasks. It acknow-ledged that the evolving and varying nature of the respons-ibilities of regulatory agencies, justifies the examination of allquestions related to their structure, including the compositionof management boards and the respective functions of theirbodies. In addition to current experience, the Council held thatthis examination should take into account, inter alia, the com-petences exercised by, and the nature of the tasks allocated to,each agency. The Council notes that these conclusions arewithout prejudice to any ongoing work on the creation of

99

218 See European Parliament Report, A5-0471/2003, supra note 216,pp. E, L, 1-3, 15, 17d), e) and g). 12–13, 18 and 24–25.

“regulatory agencies” as already proposed by the Commis-sion or under discussion in Council." In the Council’s view, afuture horizontal framework should only apply to thoseregulatory agencies established after the entry into force ofsuch a framework.219

100

219 See Bulletin EU 6-2004, Future of the Union and institutional questions(4/5), http://europa.eu.int/abc/doc/off/bull/en/200406/p1010004.htm.

9 CONCLUSIONS This study gives an overview of the Commission’s agenda forEuropean governance reform set out in the White Paper,focusing on how the Commission envisages its own role in theEU decision-making process. Furthermore, it describes how anumber of follow-up documents adopted by the Commissionhave essentially given effect to the initial recommendations andproposals set out in the White Paper. The aim has been toclarify how the governance reform has taken a concrete shapeat the different stages in the decision-making process since thelaunch of the White Paper in 2001. To sum up, the Commis-sion has realised almost everything it initially set out to dobefore the end of the term in 2004, namely, the adoption ofminimum standards for consultation, the establishment of data-bases open to the public, the proposal for a new comitologydecision, the framework for agencies and the codification ofthe conditions for infringement actions. Some ideas, such asintroducing partnership agreements, have not resulted in anyconcrete action yet.

According to the Commission, the governance reform willmake the decision-making process more democratic,legitimate, transparent, and effective. It is difficult to assess inwhat respect the reform actually achieves such results. Manyof the adopted initiatives have not been in place long enoughto be evaluated. Furthermore, it is hard to measure the impactof several processes, for example the extent to which theCommission considers the input of civil society before adopt-ing new initiatives. On the basis of this study, some conclu-sions will therefore be drawn on the overall structure of thereform rather than on the possible success with regard tobringing “Europe closer to its citizens”.

In order to illustrate how the Commission has fulfilled theWhite Paper agenda the decision-making process has beendivided into three phases in this study, the initiating phase, theimplementing phase and the monitoring phase. With regard tothe nature of the proposals, it may be noticed that all the

101

innovative ideas and proposals involving binding rules relateto the implementing phase (see supra part 5). Here we findthe only proposal for a legislative act, namely the proposal fora new comitology decision that has to be adopted by theCouncil. It may also be questioned whether this proposal canbe realised without changing the EC Treaty. Moreover, theintroduction of tripartite contracts and agreements is a newform for involving regional and local government in thedecision-making process. Finally, the Commission presents anew framework for the creation of regulatory agencies. Theproposals relating to the initiating and monitoring phases(see supra part 4 and 6) mainly focus on structuring processesthat already exist by introducing principles and standards. Inthis respect, for example, the Commission has adopted theminimum standards on consultation, systematised the impactassessment process, and developed priority criteria forinvestigations and treatment of possible breaches. However,these “rules” are not legally binding, in contrast to thedocuments relating to the implementing phase. The processeshave also been made more transparent through the establish-ment of several databases, for example CONNECS, a databaseset up in order for the general public and civil society organisa-tions to see what organisations are involved in consultations,and Your-Voice-in-Europe, a single access point used for allconsultations.

With regard to the substance of the proposals, one conclusionthat may be drawn from this study is that the governancereform must be seen in its entirety. This may be difficult sincethe Commission’s initiatives in this field relate to a wide rangeof subjects, from the setting up of new databases to the reformof the comitology system. Furthermore, the proposals havebeen presented during a four-year long period of time. But inorder to understand the bigger picture of the reform it isnecessary to look at how the different proposals relate to eachother. The Commission’s purported goal for the reform is toachieve “better decision-making”. But when the differentproposals relating to various aspects are seen as an entirety,

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one can conclude that the reform will lead to the Commissiongaining more power with less political supervision. In ourview, it is clear that the Commission’s underlying goal is tostrengthen its own role in the decision-making process.Proposals pointing in this direction are, for example, a morestrategic use of the right to withdraw proposals for legislation,the restriction of legislation to essential elements leaving theCommission to fill in technical details by implementingsecondary rules, the restriction of comitology, the introduc-tion of tripartite contracts and the use of regulatory agenciesgoverned by administrative boards equally represented by theCommission and the Council, led by a director appointed bythe Commission. Additionally, the proposals relating to “betterconsultation” show that the Commission is willing to structureand open up the decision-making process but only as long asit is not bound by any formal rules.

When looking at how the Commission presents the proposalsleading to this strengthened role, it seems as though it uses thereforms leading to more openness and involvement of otherplayers in the decision-making process as a means of justifyingthis shift of power. It is true that the governance reform hasachieved a lot with regard to the structuring and transparencyof how the Commission works. The establishment of databases,the publication of minutes and the opening-up of the decision-making process is a positive step towards making the Unionand its decisions visible to the citizens. But it also createsproblems. It has, for example with regard to the EuropeanSecurities Market, been questioned if the advantages of theconsultation processes outweigh the amount of time and theeffort that need to be put into them, not only for the Com-mission itself but also for the ones being consulted. Moreimportantly, these reforms cannot be used to legitimate adecreased political control of the Commission in the im-plementing phase. If legislation, by the Council and the Euro-pean Parliament, is even more slimmed down to the essentialelements than today, the Commission might deal with highlysensitive political issues without being effectively controlled.

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The efficiency of the decision-making process in an enlargedUnion is, of course, very important and it would be extremelytime consuming to legislate if the Council and EuropeanParliament has to deal with all details regarding the im-plementation of a legislative act. But this requires a mechanismfor political control that is sufficiently satisfactory for bothlegislators. It might be true that the comitology structure needsto be reformed in order to put the legislators, i.e. the Counciland the European Parliament, on a more balanced footing assupervisors of the Commission. Still, the solution suggested bythe Commission will not necessarily lead to a more effectivedecision-making process since it might be more difficult forthe legislators to agree on the scope of the delegation if thepolitical control is weaker at the implementing phase.220 Suchproposals should therefore be combined with other reformson how to compensate for the loss of political control, forexample by making the Commission more accountable to theEuropean Parliament. A substantive discussion on these mattersis missing in the governance reform presented by the Com-mission.

As the Commission has stated itself, the governance reformlaunched in the White Paper and intended to be implementedunder the existing treaties should be seen as a complement tothe phase of the institutional reform launched by the LaekenDeclaration. In this respect it is interesting to note that manyof the issues treated in the White Paper were also discussedwithin the work of the European Convention on the future ofEU. Furthermore, the Commission was very successful: forexample, the Constitutional Treaty does state that a legislativeact can only be adopted on the basis of a Commissionproposal221, that the Commission shall carry out broad con-sultations,222 and introduces a hierarchy of legal acts with a

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220 See Almer, J., Institutionell reform av EG:s värdepappersmarknad,Europarättslig tidskrift 2003 pp. 40–59.

221 See Article I-26.2 of the Constitutional Treaty. 222 See Article I-47.3 of the Constitutional Treaty.

new mechanism for political control when the power to enactlegislation has been delegated to the Commission.223

At present, it is still uncertain when and indeed if the newConstitutional Treaty will enter into force. Meanwhile, areform is only possible under the existing treaties. The agendaset out in the White Paper is therefore relevant for many yearsto come.

105

223See Articles I-33-37 of the Constitutional Treaty, see also supra note 119.

ANNEX I– A Chronological Overview of the Documents Relatedto the White Paper 11 October 2000 Commission Working Document of 11 October 2000

on Enhancing democracy in the European Union2000, SEC (2000) 1547/7 final

June 2001 Commission Report on the consultations conductedfor the preparation of the White Paper on democraticEuropean governance, SG/8533/01 (June 2001)

25 July 2001 Commission’s White Paper of 25 July 2001 onEuropean Governance, COM (2001) 428

25 July 2001 Report produced by the Commission of theapplication of Community law over the past 30 years(Livre Blanc sur la Gouvernance Europeenne,Rapport sur l'application du droit communautaire parles États membres et sur le contrôle de celle-ci par laCommission, contenant des recommandations en vuede les améliorer du point de vue de la gouvernancedémocratique européenne (version finale))

September 2001 Commission Working Paper, “Recommendations forthe improvement of the application of Community lawby the Member States and its enforcement by theCommission” (September 2001)

5 December 2001 Commission Communication of 5 December 2001,“Simplifying and improving the regulatoryenvironment”, COM (2001) 726 final

21 December 2001 Commission Communication of 21 December 2001,“Withdrawal of Commission proposals which are nolonger topical”, COM (2001) 763 final/2

20 March 2002 Commission Communication of 20 March 2002 to theEuropean Parliament and the European Ombudsmanon Relations with the complaint in respect ofinfringements of Community law, COM (2002) 141final

22 May 2002 Commission Communication of 22 May 2002 to theEuropean Convention on the Future of the EU,“A project for the European Union”, COM (2002)247 final

106

5 June 2002 Commission Communication of 5 June 2002,“European Governance: Better lawmaking”, COM(2002) 275 final

5 June 2002 Commission Communication of 5 June 2002 onImpact assessment, COM (2002) 276 final

5 June 2002 Commission Communication of 5 June 2002,Consultation document: “Towards a reinforced cultureof consultation and dialogue – Proposal for generalprinciples and minimum standards for consultation ofinterested parties by the Commission”, COM (2002)277 final

5 June 2002 Commission Communication of 5 June 2002, Actionplan: “Simplifying and improving the regulatoryenvironment”, COM (2002) 278 final

October 2002 Technical guidelines on the implementation processfor the Commission Services (October 2002)

11 December 2002 Commission Communication of 11 December 2002,“Towards a reinforced culture of consultation anddialogue – General principles and minimum standardsfor consultation of interested parties by theCommission”, COM (2002) 704 final

11 December 2002 Commission Report of 11 December 2002 onEuropean Governance, COM (2002) 705 final

11 December 2002 Commission Communication of 11 December 2002,“A framework for target-based tripartite contracts andagreements between the Community, the States andregional and local authorities”, COM (2002) 709 final

11 December 2002 Commission Communication of 11 December 2002on the collection and use of expertise by theCommission: principles and guidelines, “Improvingthe knowledge base for better policies”, COM (2002)713 final

11 December 2002 Commission Communication of 11 December 2002,“The operating framework for the EuropeanRegulatory Agencies”, COM (2002) 718 final

11 December 2002 Proposal of 11 December 2002 for a CouncilDecision amending Decision 1999/468/EC layingdown the procedures for the exercise of implementingpowers conferred on the Commission, COM (2002)719 final

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11 December 2002 Commission Communication of 11 December 2002,“Better monitoring of the application of Communitylaw”, COM (2002) 725 final

11 December 2002 Commission Communication of 11 December 2002 tothe European Convention on the Future of the EU onthe institutional architecture, “For the EuropeanUnion, Peace, Freedom, Solidarity”, COM (2002) 728final/2

11 February 2003 Commission Communication of 11 February 2003 tothe Council, the European Parliament, the EuropeanEconomic and Social Committee and the Committeeof the Regions, “Updating and simplifying theCommunity acquis”, COM (2003) 71 final

28 March 2003 Commission Working Paper of 28 March 2003 on anOngoing and systematic policy dialogue with local-government associations

9 October 2003 European Parliament decision of 9 October 2003 onthe conclusion of the inter-institutional agreement onBetter Law-Making between the European Parliament,the Council and the Commission, 2003/2131/ACI

19 December 2003 Commission Communication of 19 December 2003,“Dialogue with associations of regional and localauthorities on the formulation of European Unionpolicy”, COM (2003) 811 final

22 April 2004 Amended proposal for a Council decision amendingDecision 1999/468/EC laying down the procedures forthe exercise of implementing powers conferred on theCommission, COM (2004) 324

12 July 2004 Recommendations from the Commission on thetransposition into national law of Directives affectingthe internal market, Brussels 12 July 2004, SEC(2004) 918 final

22 September 2004 Report on European Governance (2003–2004) SEC(2004) 1153

108

ANNEX II– A Substance-matter Overview of the Documents Relatedto the White Paper Report on European Governance andoutcome Public Consultation• “Bilan” of the public debate on Governance and list of actions made

since the publication of the White Paper on July 2001, Commission’sWhite Paper of 25 July 2001 on European Governance, COM (2001)428

Better Lawmaking• Commission Communication of 5 December 2001, “Simplifying and

improving the regulatory environment”, COM (2001) 726 final

• Commission Communication of 21 December 2001, “Withdrawal ofCommission proposals which are no longer topical”, COM (2001)763 final/2

• Commission Communication of 5 June 2002, “European Governance:Better lawmaking”, COM (2002) 275 final

• Commission Communication of 5 June 2002, Action plan: “Simplifyingand improving the regulatory environment”, COM (2002) 278 final

• Commission Report of 11 December 2002 on European Governance,COM (2002) 705 final

• Commission Communication of 11 February 2003 to the Council, theEuropean Parliament, the European Economic and Social Committee andthe Committee of the Regions, “Updating and simplifying theCommunity acquis”, COM (2003) 71 final

Minimium Standards Consultation• Commission Communication of 5 June 2002, Consultation document:

“Towards a reinforced culture of consultation and dialogue – Proposalfor general principles and minimum standards for consultation ofinterested parties by the Commission”, COM (2002) 277 final

• Commission Communication of 11 December 2002, “Towards areinforced culture of consultation and dialogue – General principles andminimum standards for consultation of interested parties by theCommission”, COM (2002) 704 final

Impact Assesment• Commission Communication of 5 June 2002 on Impact assessment,

COM (2002) 276 final

109

Expertise• Commission Communication of 11 December 2002 on the collection

and use of expertise by the Commission: principles and guidelines,“Improving the knowledge base for better policies”, COM (2002)713 final

Target-based Tripartite Contracts• Commission Communication of 11 December 2002, “A framework for

target-based tripartite contracts and agreements between the Community,the States and regional and local authorities”, COM (2002) 709 final

Regulatory Agencies• Commission Communication of 11 December 2002, “The operating

framework for the European Regulatory Agencies”, COM (2002)718 final

Comitology• Proposal of 11 December 2002 for a Council Decision amending

Decision 1999/468/EC laying down the procedures for the exercise ofimplementing powers conferred on the Commission, COM (2002)719 final

• Amended proposal for a Council decision amending Decision1999/468/EC laying down the procedures for the exercise ofimplementing powers conferred on the Commission, COM (2004) 324

Application of Community Law (Infrigements) • Commission Working Paper, “Recommendations for the improvement of

the application of Community law by the Member States and itsenforcement by the Commission” (September 2001)

• Commission Communication of 20 March 2002 to the EuropeanParliament and the European Ombudsman on Relations with thecomplaint in respect of infringements of Community law, COM (2002)141 final

• Technical guidelines on the implementation process for the CommissionServices (October 2002)

• Commission Communication of 11 December 2002, “Better monitoringof the application of Community law”, COM (2002) 725 final

• Recommendations from the Commission on the transposition intonational law of Directives affecting the internal market, Brussels 12 July2004, SEC (2004) 918 final

110

Dialogue with Associations of Local andRegional Authorities• Commission Working Paper of 28 March 2003 on an Ongoing and

systematic policy dialogue with local-government associations

• Commission Communication of 19 December 2003, “Dialogue withassociations of regional and local authorities on the formulation ofEuropean Union policy”, COM (2003) 811 final

111

List of MaterialsTreatiesTreaty on European Union (OJ 1992 C 191/1)

Treaty of Nice (OJ 2001 C 80/1)

Treaty establishing the European Community (consolidated text) (OJ 2002C 325/1)

Draft Treaty establishing a Constitution for Europe (OJ 2003 C 169/1)2003/2004 IGC – Provisional consolidated version of the Treatyestablishing a Constitution for Europe, CIG 87/04, Brussels 6 August 2004

LegislationCouncil Decision 1999/468 of 28 June 1999 laying down the proceduresfor the exercise of implementing powers conferred on the Commission (OJ1999 L 184/23)

European Parliament and Council Regulation 1049/2001/EC of 30 May2001 regarding public access to European Parliament, Council andCommission documents (OJ 2001 L 145/43)

Directive 2002/2/EC of the European Parliament and of the Council of 28January 2002 amending Council Directive 79/373/EEC on the circulationof compound feedingstuffs and repealing Commission Directive91/357/EEC (OJ 2002 L 63/23)

Commission Decision 2001/527/EC of 6 June 2001 establishing theCommittee of European Securities Regulators (OJ 2001 L 191/43)

Commission Decision 2001/528/EC of 6 June 2001 establishing theEuropean Securities Committee (OJ 2001L 191/45)

Council Regulation 58/2003/EC of 19 December 2002 laying down thestatue for executive agencies to be entrusted with certain tasks in themanagement of Community programmes (OJ 2002 L 11/1)

European Parliament and Council Directive 2003/6/EC of 28 January 2003on insider dealing and market manipulation (market abuse) (OJ 2003L 96/16)

Commission Decision 2004/8/EC of 5 November 2003 amendingDecision 2001/528/EC establishing the European Securities Committee(OJ 2004 L 3/33)

Commission Directive 2003/124/EC of 22 December 2003 implementingDirective 2003/6/EC of the European Parliament and of the Council asregards the definition and public disclosure of inside information and thedefinition of market manipulation (OJ 2003 L 339/70)

112

Commission Directive 2003/125/EC of 22 December 2003 implementingDirective 2003/6/EC of the European Parliament and of the Council asregards the fair presentation of investment recommendations and thedisclosure of conflicts of interest (OJ 2003 L 339/73)

Commission Regulation (EC) 2273/2003 of 22 December 2003implementing Directive 2003/6/EC of the European Parliament and of theCouncil as regards exemptions for buy-back programmes and stabilisationof financial instruments (OJ 2003 L 336/33)

Commission Directive 2004/72/EC of 29 April 2004 implementingDirective 2003/6/EC of the European Parliament and of the Council asregards accepted market practices, the definition of inside information inrelation to derivatives on commodities, the drawing up of lists of insiders,the notification of managers' transactions and the notification of suspicioustransactions (OJ 2004 L 162/70)

Official DocumentsCommission DocumentsCommission Communication of 9 February 2000 on Strategic Objectives2000–2005 “Shaping the New Europe”, COM (2000) 154

Commission Working Document of 11 October 2000 on Enhancingdemocracy in the European Union 2000, SEC (2000) 1547/7 final

Proposal for a Directive of the European Parliament and of the Councilon insider dealing and market manipulation (market abuse), COM (2001)281 final

Commission Report on the consultations conducted for the preparation ofthe White Paper on democratic European governance, SG/8533/01,(June 2001)

Commission Communication of 28 June 2001 on a new framework forcooperation on the information and communication policy of the EuropeanUnion, COM (2001) 354

Commission’s White Paper of 25 July 2001 on European Governance,COM (2001) 428

Commission Communication of 21 December 2001, “Withdrawal ofCommission proposals which are no longer topical”, COM (2001)763 final/2

Commission Communication of 3 April 2001 on Interactive PolicyMaking, COM (2001) 1014

113

Provisional Request for Technical Advice on Possible ImplementingMeasures on the Future Directive on Insider Dealing and MarketManipulation (Market Abuse), Brussels, 18 March 2002

Commission Communication of 22 May 2002 to the European Conventionon the Future of the EU, “A project for the European Union”, COM (2002)247 final

Commission Communication of 5 June 2002, “European Governance:Better lawmaking”, COM (2002) 275 final

Commission Communication of 5 June 2002 on Impact assessment, COM(2002) 276 final

Impact Assessment in the Commission: Internal Guidelines on the NewImpact Assessment Procedure Developed for the Commission ServicesCommission Communication of 5 June 2002, Consultation document:“Towards a reinforced culture of consultation and dialogue – Proposal forgeneral principles and minimum standards for consultation of interestedparties by the Commission”, COM (2002) 277 final

Commission Communication of 5 June 2002, Action plan: “Simplifyingand improving the regulatory environment”, COM (2002) 278 final

Commission Communication of 2 July 2002 on an Information andCommunication Strategy, COM (2002) 350 final

Commission’s Feasibility Study: Contribution to a preliminary draftConstitution of the European Union of 5 December 2002,working document available atwww.europa.eu.int/futurum/documents/offtext/const051202_en.pdf

Commission Communication of 11 December 2002, “Towards a reinforcedculture of consultation and dialogue – General principles and minimumstandards for consultation of interested parties by the Commission”, COM(2002) 704 final

Commission Report of 11 December 2002 on European Governance,COM (2002) 705 final

Commission Communication of 11 December 2002, “A framework fortarget-based tripartite contracts and agreements between the Community,the States and regional and local authorities”, COM (2002) 709 final

Commission Communication of 11 December 2002 on the collection anduse of expertise by the Commission: principles and guidelines, “Improvingthe knowledge base for better policies”, COM (2002) 713 final

Commission Communication of 11 December 2002, “The operatingframework for the European Regulatory Agencies”, COM (2002) 718 final

114

Proposal of 11 December 2002 for a Council Decision amending Decision1999/468/EC laying down the procedures for the exercise of implementingpowers conferred on the Commission, COM (2002) 719 final

Commission Communication of 11 December 2002, “Better monitoring ofthe application of Community law”, COM (2002) 725 final

Commission Communication of 11 December 2002 to the EuropeanConvention on the Future of the EU on the institutional architecture, “Forthe European Union, Peace, Freedom, Solidarity”, COM (2002) 728 final/2

Commission Communication of 11 February 2003 to the Council, theEuropean Parliament, the European Economic and Social Committee andthe Committee of the Regions, “Updating and simplifying the Communityacquis”, COM (2003) 71 final

Commission Working Paper of 28 March 2003 on an Ongoing andsystematic policy dialogue with local-government associations

Proposal for amending Council Regulation (EC) No 384/96on protection against dumped imports from countries not members of theEuropean Community and Regulation (EC) No 2026/97 on protectionagainst subsidised imports from countries not members of the EuropeanCommunity, COM (2003) 380 final

Formal Commission draft on second set of measures implementing theEuropean Parliament and Council Directive 2003/6/EC on insider dealingand market manipulation, submitted to the European Securities Committee,ESC document Nr. 48/2003

Commission staff working paper, 29 October 2003, SEC (2003) 1171/3

20th Annual Report on Monitoring the Application of Community Law(2002), Brussels 21 November 2003, COM (2003) 669 final

Commission Communication of 19 December 2003, “Dialogue withassociations of regional and local authorities on the formulation ofEuropean Union policy”, COM (2003) 811 final

Amended proposal for a Council decision amending Decision1999/468/EC laying down the procedures for the exercise of implementingpowers conferred on the Commission, COM (2004) 324

Recommendations from the Commission on the transposition into nationallaw of Directives affecting the internal market, Brussels 12 July 2004, SEC(2004) 918 final

115

European Parliament DocumentsEuropean Parliament Resolution of 29 November 2001on the Commission White Paper on European Governance, A5-0399/2001

European Parliament Activity Report of 1 August 2001–31 July 2002 ofthe delegations to the Conciliation Committee, PE 287.614

European Parliament Report of 3 December 2002 on the typology of actsand the hierarchy of legislation in the European Union, 2002/2140 (INI),A5 0425/2002 final

European Parliament Resolution of 14 January 2003 on the role of theregional and local authorities in the European integration, P5_TA0009/2003

European Parliament Resolution of 29 January 2003 on the typology ofacts and the hierarchy of legislation in the European Union, CONV 517/03

European Parliament Second Report of 11 July 2003 on the proposal for aCouncil decision on amending Decision 1999/468/EC laying down theprocedures for the exercise of implementing powers conferred on theCommission, A5-0266/2003 final

European Parliament legislative Resolution of 2 September 2003 on theproposal for a Council decision on amending Decision 1999/468/EC layingdown the procedures for the exercise of implementing powers conferred onthe Commission, P5_TA-PROV 0352/2003

European Parliament Resolution of 4 December 2003 on EuropeanGovernance, A5-0402/2003

European Parliament Report of 4 December 2003 on CommissionCommunication on “The operating framework for the European regulatoryagencies”, A5-0471/2003

European Parliament Resolution of 4 December 2003 on CommissionCommunication entitled “A framework fortarget-based tripartite contracts and agreements between the Community,the States and regional and local authorities”, P5_TA-PROV 0550/2003

European Parliament Decision of 9 October 2003 on the conclusion of theinter-institutional agreement on BetterLaw-Making between the European Parliament, the Council and theCommission, 2003/2131/ACI

116

Other Official DocumentsOpinion of the Economic and Social Committee of 17 November 1999 onthe role and contribution of civil society organisations in the building ofEurope (OJ 1999 C 329/30)

2283rd meeting of the Council (Economic and Financial Questions), heldin Brussels on 17 July 2000

Declaration No 23 on the Future of the Union attached to the Treaty ofNice

Final Report of the Committee of Wise Men on the Regulation ofEuropean Securities Market, Brussels, 15 February 2001

Laeken Declaration on the future of the European Union, annexed toPresidency Conclusions, European Council meeting in Laeken,14-15 December 2001

Public Statement of Consultation Practices, December 2001,CESR/01-007c

Opinion of the Committee of the Regions of 13 March 2002 on the WhitePaper on governance and the Communication on a new framework forcooperation on activities concerning the information and communicationpolicy of the European Union

Opinion of the Economic and Social Committee on European Governance-a White Paper, Brussels 20 March 2002, CES 357/2002 EN/o

Possible Implementing Measure on Market Abuse request for Advice andCall for Evidence, 27 March 2002, CESR/02-047

Contribution from Mr Barnier and Mr Vitorino to the Convention on3 September 2002 on the Community method, CONV 231/02

Working document of 7 November 2002 to the Working Group IX onSimplification, Proposal to distinguish legislative and executive functionsin the institutional system of the European Union, paper by Mr. Ponzano,member of the Convention and Commission's representative in the Group,WD 16

Results of CESR’s public consultation on possible measures of the futureMarket Abuse Directive, 13 November 2002, CESR/02-226c

CESR’s Advice on Level 2 Implementing Measures for the proposedMarket Abuse Directive, December 2002, CESR/02-089d

Opinion delivered by the Committee of the Regions on 2 July 2003concerning the follow-up to the Commission’s White Paper on EuropeanGovernance

117

The Role of CESR at “level 3” under the Lamfalussy process,CESR/04-104b

AEBR, CEMR, CPMR and EUROCITIES, joint response to theCommission working paper “Ongoing and systematic policy dialogue withlocal-government associations”,available athttp://europa.eu.int/comm/regional_policy/consultation/territorial/reponse_jointe_observations_en.pdf

Case LawCase 25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel vKöster, Berodt & Co [1970] ECR 1161

Case 240/90 Germany v Commission [1992] ECR I-5383

National DocumentsThe German Government’s opinion on the European Commission’s WhitePaper on European Governance, 12 December 2001, available atwww.europa.eu.int/comm/governance/contributions/index_en.htm

The Danish Government’s comment to the European Commission’s WhitePaper on European Governance, available at http://www.europa.eu.int/comm/governance/contributions/index_en.htm

The Netherlands Government’s response to the European Commission’sWhite Paper on European Governance, available athttp://www.europa.eu.int/comm/governance/contributions/index_en.htm

The UK Government’s response to the European Commission’s WhitePaper on European Governance, available atwww.europa.eu.int/comm/governance/contributions/index_en.htm

The Swedish Government’s comments on the European Commission’sWhite Paper on European Governance, Ministry for Foreign Affairs,22 March 2002, available atwww.europa.eu.int/comm/governance/contributions/index_en.htm

The Swedish Government’s comments on the European Commission’sWhite Paper on European Governance, Ministry for Foreign Affairs,30 July 2002, available athttp://europa.eu.int/comm/secretariat_general/sgc/consultation/docs/contrib_su_gov.pdf

The UK Government’s response to the Commission’s Package ofCommunications on Better Regulation, July 2002, available athttp://europa.eu.int/comm/secretariat_general/sgc/consultation/docs/cont_uk_gov.pdf

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Svenska Kommunförbundet och Landstingsförbundet, Synpunkter påKommissionens arbetsdokument, ”En kontinuerlig och systematisk dialogmed sammanslutningar av regionala och lokala myndigheter i utform-ningen av politiken”, available at http://europa.eu.int/comm/regional_policy/consultation/territorial/svenska_kommunforbundet.pdf

House of Commons, European Scrutiny Committee, Thirty-second reportof session 2002–03, published 26 September 2003

House of Commons, European Scrutiny Committee, Thirty-seventh reportof session 2002–03, published 26 November 2003

House of Commons, European Scrutiny Committee, Twenty-third report ofsession 2003–04, published 1 July 2004

Articles and LiteratureAlmer, J., Institutionell reform av EG:s värdepappersmarknad,Europarättslig tidskrift 2002 pp. 40–62

Bergström, C.F. and Almer, J., The Residual Competence: Basic Statisticson Legislation with a Legal Basis in Article 308 EC, Working Document,available at www.sieps.se.

Bergström, C.F., Comitology – Delegation of Powers in the EuropeanUnion and the Committee System, (Stockholm University 2003)

Bergström, C.F. and Rotkirch, M., Simply Simplification? The Proposal fora Hierarchy of Legal Acts, Sieps 2003:8

Bergström, C.F. and Rotkirch, M., Decentralised Agencies and the IGC:a Question of Accountability, Sieps 2003:14

Bouwen, P., Competing for Consultation: Inter-Organizational Conflictbetween the Commission and the Parliament, Discussion Paper publishedby the Robert Schuman Center for Advanced Studies and Sieps, (May2004)

Curtin, D., The Commission as Sorcerer’s Apprentice? Reflections on EUPolicy Administration and the role of Information Technology in HoldingBureaucracy Accountable, Working Paper No. 6/01, Symposium: Mountainor Molehill? A Critical Appraisal of the Commission White Paper onGovernance 2001, available atwww.jeanmonnetprogram.org/papers/papers01.html

Hall, B., European governance and the future of the Commission, Centrefor European Reform Working Paper, (2002)

Joerges, C., Economic order – technical realization – the hour of theexecutive: some legal historical observations on the Commission WhitePaper on European Governance, Working Paper No. 6/01, Symposium:

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Mountain or Molehill? A Critical Appraisal of the Commission WhitePaper on Governance 2001, available atwww.jeanmonnetprogram.org/papers/papers01.html

Joerges, C., Guest Editorial: The Commission’s White Paper onGovernance in the EU – A Symptom of Crisis? Common Market LawReview, vol 39, 2002

Radaelli, M. C., Impact Assessment in the European Union: innovations,Quality and Good regulatory Governance, Conference background Report,European Commission Conference, (Brussels, 3 December 2003)

Scharpf, W. F., European Governance: Common Concerns vs. TheChallenge of Diversity, Working Paper No. 6/01, Symposium: Mountain orMolehill? A Critical Appraisal of the Commission White Paper onGovernance 2001, available atwww.jeanmonnetprogram.org/papers/papers01.html

Scott, J. and Trubek, D.M., Mind the Gap: Law and New Approaches toGovernance in the European Union (2002), European Law Journal Vol 8,pp. 1–18

Shub R., Let’s all talk' plan could bring Brussels outsiders into the EUfold, European Voice, (4–10 July 2002)

Steinberg, P., Agencies, Co-Regulation and Comitology- and What aboutPolitics? A Critical Appraisal of the Commission’s White Paper onGovernance, Working Paper No. 6/01, Symposium: Mountain or Molehill?A Critical Appraisal of the Commission White Paper on Governance 2001, available at www.jeanmonnetprogram.org/papers/papers01.html

Sundberg, H. and Bengotxea, J., The Other Constitution – theCommission’s White Paper on New Governance, Europarättslig tidskrift2004 p. 139–163

Weiler, J. H. H., The Commission as Euro-Skeptic: A Task orientedCommission for a Project-Based Union, A Comment on the First version ofthe White Paper, Working Paper No. 6/01, Symposium: Mountain orMolehill? A Critical Appraisal of the Commission White Paper onGovernance 2001, available at www.jeanmonnetprogram.org/papers/papers01.html

Wallace, H. and Young, A.. R. (eds.), Participation and Policy-Making inthe European Union, (Clarendon Press 1997)

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Speeches Speech by Romano Prodi in the European Parliament on 15 February 2000

Speech by Heinz Zourek, Deputy Director General Enterprise DG,Conference on Impact Assessment, Brussels, 3 December 2003

Speech by Baron Alexandre Lamfalussy, Seminar onThe Integration of Financial Markets in Europe, Stockholm, 21 April 2004

WebsitesCalendar for transposition of Directives www.europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#calendar

The Commission’s website on Governancewww.europa.eu.int/comm/governance/index_en.htm

Committee of European Securities Regulatorshttp://www.cesr-eu.org

CONECCSwww.europa.eu.int/comm/civil_society/coneccs/index_en.htm

Council of the European Unionhttp://ue.eu.int/

Convention on the Future of the EUhttp://european-convention.eu.int

Eur-Lexwww.europa.eu.int/eur-lex/en/index.html

European Securities Committeehttp://www.europa.eu.int/comm/internal_market/en/finances/mobil/esc_en.htm

Futurumwww.europa.eu.int/futurum

Intergovernmental Conference 2000www.europa.eu.int/comm/archives/-igc2000/geninfo/index_ en.htm

Intergovernmental Conference 2003/2004http://ue.eu.int/cms3_fo/showPage.ASP?id=251&lang=en

Market Abuse-websitehttp://www.europa.eu.int/comm/internal_market/en/finances/mobil/marketabuse/

Your-Voice-In-Europewww.europa.eu.int/yourvoice

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SIEPS PUBLICATIONS AVAILABLE IN ENGLISH2004:1opThe Netherlands 2004 EU Council Presidency– Dutch EU Policy-making in the SpotlightsAuthor: Mendeltje van Keulen

2004:1u European Governance– an Overview of the Commission’s Agenda for ReformAuthors: Josefin Almer and Matilda Rotkirch

2003:1op Contrasting Transatlantic Interpretations– the EU and the US towards a Common Global Role Author: Ludger Kühnhardt

2003:19Industrial Structure and Industry Location in an Enlarged Europe Author: Karolina Ekholm

2003:18Coming of Age? Economic Management of the European UnionAuthors: Per Molander and Allan Gustafsson

2003:17Reinventing Cohesion – the Future of European Structural PolicyAuthor: Daniel Tarschys

2003:14Decentralized Agencies and the IGC – a Question of AccountabilityAuthors: Carl Fredrik Bergström and Matilda Rotkirch

2003:9Reforming the Council – a Work in ProgressAuthors: Helen Wallace and Fiona Hayes-Renshaw

2003:8Simply Simplification? The Proposal for a Hierarchy of Legal ActsAuthors: Carl Fredrik Bergström and Matilda Rotkirch

2003:7The Invisible Transformation of Codecision– Problems of Democratic LegitimacyAuthors: Henry Farrell and Adrienne Héritier

2003:1The Open Method of Coordination– a New Governance Architecture for the European Union?Author: Claudio M Radaelli

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